Trajkoski v Director of Public Prosecutions (WA)
[2013] WASCA 222
•25 SEPTEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRAJKOSKI -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2013] WASCA 222
CORAM: MARTIN CJ
BUSS JA
MAZZA JA
HEARD: 14 MARCH 2013
DELIVERED : 14 MARCH 2013
PUBLISHED : 25 SEPTEMBER 2013
FILE NO/S: CACV 59 of 2012
BETWEEN: SOTIR TRAJKOSKI
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WAGER DCJ
Citation :DIRECTOR OF PUBLIC PROSECUTIONS -v- TRAJKOSKI [No 2] [2012] WADC 81
File No :CIVO 94 of 2012, IND 1605 of 2003
Catchwords:
Leave to appeal - Interlocutory decision - Whether permanent stay should have been granted by first instance judge - Delay and injustice - Turns on own facts
Appeal - Practice and procedure - Application to adduce additional evidence
Legislation:
Misuse of Drugs Act 1981 (WA), s 6, s 7, s 32A
Supreme Court (Court of Appeal) Rules 2005, r 47(3)(d)
Result:
Application to adduce additional evidence granted
Leave to appeal refused
No order as to costs
Category: B
Representation:
Counsel:
Appellant: Mr C Chenu
Respondent: Mr B Fiannaca SC & Mr L M Fox
Solicitors:
Appellant: Bennett & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Director of Public Prosections (WA) v Pindan [2012] WASC 13
Director of Public Prosecutions v Trajkoski [2012] [No 2] WADC 81
Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632
R v Edwards [2009] HCA 20
State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Todd v Novotny [2000] WASC 308
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; [2010] 41 WAR 105
Whitegum Petroleum Pty Ltd v Bernadini Pty Ltd [2010] WASCA 229
Wilson v Metaxas [1989] WAR 285
REASONS OF THE COURT:
Summary
The appellant, Mr Sotir Trajkoski, applied to this court for leave to appeal from an interlocutory decision refusing his application for a permanent stay of proceedings that he be declared a drug trafficker pursuant to s 32A of the Misuse of Drugs Act 1981 (WA) (the MDA). The respondent, the Director of Public Prosecutions (WA) (the DPP) was the applicant in the proceedings for a declaration under the MDA. The declaration had been sought following Mr Trajkoski's conviction on a charge of cultivating a prohibited plant, namely, cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the MDA.
Mr Trajkoski sought a stay of the proceedings for a declaration on a number of grounds, including delay. However, in the application for a stay, and in the application for leave to appeal from the refusal of the stay, most emphasis was placed upon the consequences which are said to flow from the destruction of a number of exhibits which were tendered or obtained for the purposes of Mr Trajkoski's trial, including the cannabis plants, a still photograph and some video images of the cannabis crop, video images of part of the process of bagging the plants which were seized, and the exhibit log created by police at the time the plants were seized.
Prior to the hearing of the application for leave to appeal, the DPP applied for leave to adduce additional evidence, being evidence which was not before the judge at first instance at the time she refused Mr Trajkoski's application for a stay. That evidence took the form of a number of affidavits which, if received into evidence, established that the photographic and video images which were tendered at trial and subsequently destroyed were in fact replications produced from digital files which remain in existence, and from which further replications can and have been made in identical form to those tendered at trial, and that carbon copies of the exhibit log which was tendered at trial and subsequently destroyed also remain in existence.
After hearing argument with respect to the application for leave to adduce additional evidence, the court announced that leave would be granted for reasons to be published in due course. After hearing argument on the application for leave to appeal, the court announced that leave would be refused for reasons to be published in due course. These are those reasons.
The trial of the criminal charge
Mr Trajkoski's trial on the charge of cultivating cannabis with intent to sell or supply to another commenced before a judge and jury in the District Court on 30 July 2007. The case was opened by the State on the basis that evidence would be led from police officers to the effect that they found and seized 254 cannabis plants growing at Mimegarra near Lancelin. It was the State's case that Mr Trajkoski was responsible for the crop.
The evidence foreshadowed by the State came from a number of sources. Sergeant Wenman was a police sergeant attached to the police air wing. His evidence was to the effect that he detected a suspicious crop during the course of aerial surveillance on 26 December 2002. Sergeant Wenman gave evidence to the effect that he flew over the crop again the next day, when he took photographs and video images from the air. A photograph and video images of the crop were tendered through Sergeant Wenman.
Detective Sergeant McKenner gave evidence to the effect that he attended the site of the crop and seized the plants which he found there. His evidence was that the plants were placed in 63 bags, and that each bag contained four plants except for two bags, one of which contained three plants, and the other of which contained seven smaller plants. Video images of part of the process of bagging the plants were tendered in evidence through Detective Sergeant McKenner.
During Detective Sergeant McKenner's evidence in chief, counsel appearing on behalf of Mr Trajkoski made submissions to the trial judge in the absence of the jury with respect to the number of plants that had been found and seized. During those submissions, counsel for Mr Trajkoski pointed out, in effect, that for the purposes of conviction, the relevant number of plants was 10, whereas for the purposes of any subsequent declaration to the effect that Mr Trajkoski was a drug trafficker, the relevant number of plants was 250.
Those propositions were correct, and come about through the operation of the MDA. For the purposes of a charge of possessing or cultivating prohibited plants with intent to sell or supply, s 11(b) of the MDA provides that if a person is in possession of, or cultivating, a specified number of prohibited plants, that person is presumed to have an intent to sell or supply the prohibited plants which are possessed or under cultivation.
Pursuant to sch VI of the MDA, when the cultivated plant is cannabis, at the relevant time, the relevant number of plants for the purposes of s 11(b) was 10.
However, pursuant to s 32A(1)(b)(ii) of the MDA, a person may be declared to be a drug trafficker if they are convicted of a 'serious drug offence' in respect of prohibited plants in a number not less than that specified in sch VIII of the MDA. The term 'serious drug offence' is defined, by s 32A(3) of the MDA to include an offence under s 7(1) of the MDA. At the time Mr Trajkoski was alleged to have been cultivating the cannabis plants found at Mimegarra, the relevant quantity specified by sch VIII of the MDA with respect to cannabis plants was 250 plants.
In this context, counsel for Mr Trajkoski asserted at trial that the video evidence of the bagging process raised a doubt as to whether there were in fact 254 plants seized at the site, on the basis of an assertion that the video images suggested that some bags contained only one plant. The trial judge observed that the State's case, and the evidence led by the State, was to the effect that there were four plants in each bag, and that was the case that would be put to the jury. She made the point to counsel for Mr Trajkoski that it was a matter for him to determine whether he wished to cross‑examine with respect to the precise number of plants seized. The prosecutor made the same point during the course of the interchange.
Detective Sergeant McKenner was cross‑examined, but it was not suggested to him that less than 254 plants had been found and seized.
Evidence was also led from Detective Senior Sergeant Lloyd van der Schoor who had attended the camp site. His evidence was to the effect that cannabis plants were found growing on two crop sites. According to Sergeant van der Schoor, the first site contained 59 plants, and the second contained 195 plants. Sergeant van der Schoor was cross‑examined but his evidence as to the number of plants found was not challenged.
Evidence was also led from Detective Sergeant Matthew Stray. He also gave evidence to the effect that 254 plants were seized. In the course of the cross‑examination of Sergeant Stray, his evidence as to the number of plants seized was not challenged.
Mr Trajkoski was convicted on 3 August 2007. Following Mr Trajkoski's conviction, an order was made for the destruction of the cannabis plants. At the time of conviction, the prosecutor foreshadowed an application for a declaration that Mr Trajkoski was a drug trafficker, pursuant to the provisions of s 32A of the MDA. On 29 August 2007, after Mr Trajkoski was sentenced, that application was made. In opposition to the application, counsel for Mr Trajkoski asserted that the DPP had not established that there were 250 or more cannabis plants in the crop. The trial judge rejected that contention on the basis that the State's case had been to the effect that there were 254 plants, and the witnesses who gave evidence to that effect had not been cross‑examined to the contrary. It was the view of the trial judge that in those circumstances the jury's verdict should be construed as a finding to the effect that Mr Trajkoski was cultivating 254 cannabis plants.
The appeal from the declaration
Almost two years later, on 2 July 2009, Mr Trajkoski applied for an extension of time and for leave to appeal from the declaration that he was a drug trafficker. Those applications were successful, and his appeal was upheld - see Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; [2010] 41 WAR 105. Buss JA (with Owen JA agreeing) observed:
Where an accused is convicted of an offence, the facts implicit in the verdict of guilty cannot be controverted during the sentencing process. The trial judge must sentence according to those facts, whatever his or her personal views may be about the verdict. Usually, the facts implied by the verdict will be clear. See R v Storey [1998] 1 VR 359, 366 (Winneke P, Brooking & Hayne JJA & Southwell AJA).
By analogy with this well-established proposition, where an accused is convicted of a 'serious drug offence', as defined in s 32A(3) of the MD Act, the facts implicit in the verdict of guilty cannot be controverted in the course of an application by the DPP for a drug trafficker declaration against the offender.
So, in the present case, on the hearing of the DPP's application under s 32A of the MD Act, the appellant was, as a result of the jury's verdict, bound by their implicit findings of fact that he had cultivated a prohibited drug, namely cannabis, with intent to sell or supply it to another. Also, the appellant was precluded, as a result of the verdict of conviction entered by the trial judge, from contesting that he had been convicted of a 'serious drug offence', as defined in s 32A(3). He was not, however, bound by the evidence of the State's police witnesses at the trial to the effect that they had seized 254 cannabis plants, being in excess of the number specified in sch VIII. Proof of the fact of a conviction for an offence under s 7(1)(a) of the MD Act does not establish, for the purposes of s 32A(1)(b)(ii), that the 'serious drug offence' in question was 'in respect of' any particular number of prohibited plants. See, in the context of s 6(1)(a) and s 32A(1)(b)(i) of the MD Act, Zuccala [61].
…
In my opinion, the appellant was entitled at the hearing of the DPP's application under s 32A of the MD Act to put the DPP to proof that the number of plants he had cultivated was not less than 250 plants. Also, he was entitled to cross-examine the DPP's witnesses, in particular Detective Senior Sergeant Van der Schoor, in relation to that issue. Further, the appellant was entitled to give and adduce evidence as to the number of plants under cultivation. It was necessary for the number of prohibited plants, for the purposes of s 32A(1)(b)(ii), to be proved by the DPP by evidence which established that fact in relation to the conviction for the 'serious drug offence' in question. See, in the context of s 32A(1)(b)(i), Zuccala [62].
I am satisfied that the proposed ground of appeal has merit. In particular:
(a)Her Honour erred in deciding that she was bound to accept the prosecution evidence at trial as to the quantity of plants because that evidence was not challenged at the trial (ts 807 - 808). As I have mentioned, the only relevant issue at the trial concerning the quantity of plants was whether, for the purposes of s 11(b) of the MD Act, there were at least 10 plants.
(b)Her Honour erred in deciding that the conditions specified in s 32A(1)(b)(ii) of the MD Act for making the drug trafficker declaration had been satisfied 'in light of the quantity of cannabis involved in the matter for which he's been convicted' (ts 807). As I have mentioned, the appellant's conviction did not relate to a specified quantity of plants [69] ‑ [71]; [74] ‑ [75].
In reasons somewhat differently expressed, Jenkins J in effect agreed that the judge at first instance had erred by proceeding on the implicit basis that the only evidence which could be taken into account in determining whether or not the declaration should be made was evidence led during the trial, and in implicitly finding that Mr Trajkoski was precluded from disputing the evidence led by the State in the course of his trial with respect to the number of plants seized.
The Court of Appeal ordered that the application for a declaration that Mr Trajkoski was a drug trafficker be remitted to the judge at first instance to be reheard according to law.
The stay application
Prior to the rehearing, a number of directions were made with respect to disclosure by the DPP. In the course of communications between the parties on the subject of disclosure, the DPP advised that the original exhibits at trial had been destroyed, following the expiry of the relevant appeal period after Mr Trajkoski's conviction. The exhibits which were destroyed included an aerial photograph of the crop, video images of the crop taken from the air, video images of the campsite and part of the process of bagging the plants, and the exhibit log prepared by police witnesses in the course of the investigation. As we have noted, the cannabis plants had been destroyed earlier pursuant to an order made by the trial judge immediately following Mr Trajkoski's conviction.
Following that disclosure, Mr Trajkoski applied for a permanent stay of the application that he be declared to be a drug trafficker. The application for a permanent stay was brought on the basis that the delay which had occurred between the occurrence of the relevant events in late 2002 and the rehearing of the application, and the destruction of the photographic and video images, and the exhibit log to which we have referred, produced such unfairness and oppression as to warrant a permanent stay of the proceedings.
The judge at first instance accepted that the District Court had power to grant a permanent stay: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 74. Relying on R v Edwards [2009] HCA 20, she considered that the test was, 'whether the destruction of the original exhibits and the delay would constitute an unacceptable injustice or unfairness': Director of Public Prosecutions v Trajkoski [2012] [No 2] WADC 81 [14]. However, she did not consider that there was a general principle to the effect that 'unreasonable delay in bringing a matter to trial of itself means that there can be no trial or necessarily vitiates a conviction on a trial that has followed such a delay' [15]. Further, she was of the view that 'the destruction of independent records is not of itself a reason to permanently stay proceedings' [16]. Further, relying on Director of Public Prosections (WA) v Pindan [2012] WASC 13, the judge at first instance considered that the power to grant a permanent stay was a power which should only be exercised in extreme cases [14]; [30].
The reasons for the rejection of the application for a permanent stay are succinctly conveyed in the following paragraphs of the reasons of the judge at first instance:
I do not consider that delay in this matter is a ground for a permanent stay. Although it took over a year for the DPP to re-list the application after the matter had been determined by the Court of Appeal, the appeal was out of time and Mr Trajkoski has sought a number of adjournments since the matter was relisted before me in November 2011. Delay does not support the granting of a permanent stay.
Similarly, the original trial exhibits were not destroyed inappropriately but after the expiration of the appeal period. Mr Trajkoski sought and was granted an extension of time in which to appeal. The fact that the exhibits had been destroyed prior to the appeal is not a ground to grant a permanent stay.
I accept that Mr Trajkoski's solicitors have been unable to contact Mr Trajkoski's former solicitors and counsel from 2007. Even if the application was brought earlier there is no guarantee that either could have been located nor would their personal views of exhibit material have been relevant to the s 32A MDA hearing. It is regrettable that the original exhibits have been destroyed.
Although there is no evidence that the image recently emailed to Mr Trajkoski's solicitors by the DPP or the copies of videos served on Mr Trajkoski's solicitors are true copies of the original 2007 trial exhibits, it is highly likely that they are either copies of the originals or that they show images of the crop at Mimegarra. There is no reason why counsel for Mr Trajkoski could not put the image and the contents of the videos to the DPP's witnesses in cross-examination during the course of the s 32A MDA hearing. In the event that the witness adopts the material as being very similar to or identical to the crop site in 2002 as shown in the original exhibits, then counsel for Mr Trajkoski will have the opportunity to test the credibility of the witnesses. If that was to occur then Mr Trajkoski would not face an unacceptable injustice or unfairness. I do not grant a permanent stay of the s 32A MDA hearing and the application is dismissed.
The DPP has not provided any evidence by way of disclosure or by filing affidavit material with the court confirming that the materials emailed and served are true copies of the original exhibits 1, 2 and 13. If, during the course of cross-examination by counsel for Mr Trajkoski, the DPP's witness does not accept that the disclosed images are consistent with the crop site located at Mimegarra taken on or about 27 December 2002, then I will reconsider whether it is appropriate to stay these proceedings.
Reconsideration at that time would be appropriate because this decision is made on the understanding that the material recently provided to Mr Trajkoski's solicitors depicts the relevant crop site and is relevant to the proceedings. If that is not the case then proceeding further may constitute an unacceptable injustice or unfairness to Mr Trajkoski [31] ‑ [36].
The grounds of appeal
Mr Trajkoski advanced two grounds of appeal against the interlocutory decision refusing a permanent stay. In effect, they are:
1.In dismissing the Appellant's application for a permanent stay (Stay Application) of the Respondent's application under s 32A of the Misuse of Drugs Act 1982 [sic] against the Appellant the learned application judge's discretion miscarried in that she acted upon wrong principle, took into account extraneous or irrelevant considerations, failed to take into account relevant considerations and mistook the facts; and
2.A proper exercise of the learned application judge's discretion would have been to find, after undertaking a weighing process involving the subjective balancing of the various factors and considerations supporting and militating against a conclusion that the continuation of the s 32A Application would involve an unacceptable injustice or unfairness to the Appellant, that the s 32A MDA application should be permanently stayed.
The gravamen of both grounds of appeal is that the judge at first instance erred in not taking into account, or alternatively, not appropriately weighing the following specific factors, particularised in the appellant's amended case:
(a)the nature, purpose and consequences of the proceedings which the appellant sought to have stayed (namely, civil proceedings that could result in a serious pecuniary penalty);
(b)the destruction of both the subject matter of the proceedings (the cannabis plants) and the trial exhibits;
(c)the evidentiary onus borne by the appellant in the MDA application proceedings,
and in taking into account the following 'extraneous considerations':
(d)that the trial exhibits were not destroyed inappropriately;
(e)that the image and videos produced to the appellant were highly likely to be either copies of certain trial exhibits or showed images of the cannabis crop in question; and
(f)that the appellant would have a chance to cross-examine the respondent's witnesses at the MDA application hearing on the veracity of the image and videos disclosed to the appellant.
The appellant's case was initially filed in August 2012. On 5 October 2012, the DPP applied for leave to adduce additional evidence. That application, and the application for leave to appeal, were both referred to the hearing of the appeal.
The additional evidence
The additional evidence which the DPP applied for leave to adduce took the form of affidavits from the following:
(a)Matthew James Wenman;
(b)Paul McKenner;
(c)Lloyd Leendart van der Schoor; and
(d)Lindsay Makinson Fox
The first three affidavits were sworn during September 2012, and the fourth in early October 2012. Their general effect can be summarised as follows:
Wenman affidavit
Sergeant Wenman deposes to the source of the exhibits which were tendered in the course of his evidence at Mr Trajkoski's trial. The aerial photograph was a print from a digital photograph which he took flying over the site on 27 December 2002. The digital photographs which he took on that occasion remain in existence in electronic form, and copies of those digital files were provided to Senior Sergeant van der Schoor in early 2012. The video recording which was tendered during the trial was a copy of the original recording which was retained. A copy of the original recording was also provided to Senior Sergeant van der Schoor. Sergeant Wenman testifies that neither the photographs nor the video have been altered or modified in any way since they were originally recorded.
McKenner affidavit
Sergeant McKenner deposes that in accordance with the usual procedure, when the exhibit log was prepared in relation to the evidence which was gathered with respect to the charge brought against Mr Trajkoski, two carbon copies of the log were created on pink and yellow paper. The pink copy was provided to the person from whom the exhibits are received, and the yellow copy is retained. All copies are identical. The yellow copy of the exhibit log relating to the investigation of the charge against Mr Trajkoski has been retained and is identical to the exhibit log that was tendered during Mr Trajkoski's trial.
Sergeant McKenner also deposes that the video cassette which was tendered through him during the course of Mr Trajkoski's trial was not the tape that was in the video camera at the time the recording was made. Rather, the video (which shows the campsite and part of the process of bagging the plants) was a copy of the original. Sergeant McKenner was provided with another copy of that original by Sergeant van der Schoor for the purpose of verifying its content, and deposes that it is identical in all respects to the video which was tendered at trial.
Van der Schoor affidavit
Senior Sergeant van der Schoor deposes to the fact that the exhibits that were tendered during Mr Trajkoski's trial were returned to him on or about 28 February 2009. Because there was no appeal pending, Senior Sergeant van der Schoor arranged for those exhibits to be destroyed. Senior Sergeant van der Schoor no longer has any record of the date upon which the exhibits were destroyed, but believes it would have occurred some time prior to 9 April 2010.
Senior Sergeant van der Schoor attests, in his affidavit, that in March 2012, he received four digital photographs of the crop site from Sergeant Wenman, which he passed on to the DPP. He took the same action in relation to a video recording which he received from Sergeant Wenman.
Senior Sergeant Van der Schoor also attests to the fact that in 2002 it was not usual practice to audio‑visually record the entire process relating to the seizure of substantial cannabis plantations, because the video cameras then available did not have sufficient battery life to enable this to occur. He deposes to the fact that the video images of part of the bagging process that were tendered during the trial of Mr Trajkoski were not the original tape in the camera, but were a copy of the original tape in the camera (which remains in existence). Other copies of that tape have been made and provided to the DPP.
Fox affidavit
Mr Fox is an officer of the DPP. His affidavit supports the application for leave to adduce additional evidence, and draws attention to assertions that were made in the appellant's written argument which are said to be inconsistent with the affidavit evidence which the DPP seeks leave to adduce.
Specific objections
On behalf of Mr Trajkoski, a number of specific objections were made to particular portions of the additional evidence. Two of those objections were conceded by the DPP. It is unnecessary to refer to those objections in any detail. In addition, objection was taken to two portions of Senior Sergeant van der Schoor's affidavit, in which he asserts that:
(a)the digital photographs attached to an affidavit sworn in support of Mr Trajkoski's application for leave to appeal are 'completely consistent with' the digital images which he received from Sergeant Wenman, and
(b)the video images which he received from Sergeant Wenman depict the crop site in question, as taken from the air.
Similar objection was taken to a paragraph of the affidavit of Sergeant McKenner, in which he asserts that the video cassette which he received from Senior Sergeant van der Schoor is identical to the version which was tendered as an exhibit during Mr Trajkoski's trial.
The ground of objection was essentially to the effect that in each of the relevant paragraphs, the witness purported to depose to matters which went beyond their personal knowledge. During the hearing the court announced that those objections would be dismissed. That is because it is clear that each of the deponents had personal knowledge of the matters to which they depose. Each attended the site of the cannabis cultivation and each gave evidence at Mr Trajkoski's trial. Each was aware, by direct observation, of the site and its configuration and characteristics, and each was present at trial when the relevant exhibit was tendered in the course of their evidence. Further, Senior Sergeant van der Schoor is quite able to state whether the digital images which he received from Sergeant Wenman are consistent with the digital images attached to the affidavit filed in support of Mr Trajkoski's application for leave to appeal, based on his own direct observations.
The general objections
Counsel on behalf of Mr Trajkoski opposed the application for leave to adduce additional evidence on the basis that the evidence was not 'fresh', in that evidence to the same effect could have been placed before the judge at first instance, and no satisfactory explanation had been provided for the failure to adduce the evidence at first instance. Each of those propositions is undoubtedly correct. The essential question was whether the additional evidence should nevertheless be received.
The Court of Appeal rules
The application to adduce additional evidence was brought pursuant to rule 47(3)(d) of the Supreme Court (Court of Appeal) Rules 2005. That rule provides:
Case Management
Without limiting subrule (2), a single judge has jurisdiction:
…
(d)to make an order relating to the admission of additional evidence, either before or at the hearing of the appeal, by the Court of Appeal;
The rule refers explicitly to the jurisdiction of a single judge of the Court of Appeal with respect to case management matters. However, the parties accepted, correctly, that a quorum of three judges can also make an order with respect to the admission of additional evidence: see Lunt v New Resource Holdings Pty Ltd[No 3] [2011] WASCA 45 [35]; Whitegum Petroleum Pty Ltd v Bernadini Pty Ltd [2010] WASCA 229 [107] (Newnes JA).
Additional evidence - the principles
The principles relating to the exercise of the discretion to admit additional evidence under r 47(3)(d) were succinctly set out by Newnes JA in Whitegum Petroleum Pty Ltd v Bernadini Pty Ltd:
[W]hilst [the] discretion is not confined to the common law rules governing the admission of fresh evidence, the rule should not be construed in a way which would have the practical effect of obliterating the distinction between original and appellate jurisdictions. The discretion to admit additional evidence exists to serve the demands of justice. Ordinarily additional evidence will not be admitted unless the court is satisfied it would have produced a different result if it had been available at the trial. If it was available, or could by reasonable diligence have been made available, at the trial, that will be a factor weighing against the exercise of the discretion. If it was deliberately withheld at the trial, that will ordinarily weigh heavily against the exercise of the discretion [107].
(Also see Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182 [9]–[12] (Pullin JA)).
The common law principles relating to the admission of 'fresh' evidence will also apply to, but will not confine, the exercise of the discretion: Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd[10]. Those principles, include: that the evidence to be admitted should be 'of such importance as very probably to influence the decision', and the interests of certainty, and the finality of litigation: Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, 635 (Latham CJ), 640 ‑ 641 (Dixon J).
The significance to be attached to the failure to adduce the relevant evidence at first instance was described by McHugh, Gummow and Callinan JJ in CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172:
The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down [116].
The additional evidence in this case
The following factors are relevant to the exercise of the discretion to permit additional evidence to be adduced in this case.
First, the evidence is not fresh, and no cogent reason has been provided for the failure to adduce the evidence at first instance. These factors count significantly against the application.
Second, the proceedings before the primary judge were interlocutory in character. The public interest in the finality of litigation which underpins in part the reluctance to receive additional evidence on appeal has less force with respect to interlocutory proceedings. That is because interlocutory proceedings do not, of themselves, dispose finally of the substantive issue between the parties (by definition). In the absence of an abuse of process, an interlocutory application can be renewed, even if dismissed, and supported by different evidence: Todd v Novotny [2000] WASC 308 [9] ‑ [19]; Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 [70] ‑ [73] (Heydon JA).
Third, Mr Trajkoski applies for leave to appeal from an interlocutory decision. Generally speaking, in order to obtain the grant of leave to appeal from an interlocutory decision, the applicant must establish that substantial injustice would occur if the decision was not reversed: see Wilson v Metaxas [1989] WAR 285, 294 (Malcolm CJ, Brinsden & Smith JJ agreeing); State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 54 ‑ 55 (Malcolm CJ, Rowland & Walsh JJ agreeing). The facts established by the additional evidence - namely, that exact replicas can be produced of the photographs taken by Sergeant Wenman, (one of which was tendered at trial), and of the video images and exhibit log which were tendered at trial is directly relevant to the question of substantial injustice, and admissible on that ground alone.
Fourth, in the proceedings at first instance, Mr Trajkoski carried a heavy onus of establishing that the prejudice he would suffer if the proceedings were permitted to continue was of such gravity as to justify a permanent stay of those proceedings. The DPP defended the application for a stay on the basis that he had failed to discharge that onus, and the trial judge agreed. In this case, the additional evidence would not undermine the manner in which the proceedings were conducted at first instance but would reinforce a conclusion at which the trial judge arrived in any event - namely, that true copies of the trial exhibits would be available for use at the hearing of the application for the drug trafficker declaration, notwithstanding the destruction of the exhibits tendered at trial and the cannabis plants themselves. In that context, the additional evidence provides a complete answer to the attempt to undermine that conclusion for the purpose of obtaining the grant of leave to appeal.
In the somewhat unusual circumstances of this case, the balance of competing considerations favours the grant of leave to adduce the additional evidence, notwithstanding the unexplained failure to adduce that evidence at first instance. Because of the unusual circumstances of this case, this conclusion should not be seen as any departure from the general principles which we have set out above, and which discourage the receipt of additional evidence which is not 'fresh' on appeal.
The application for leave to appeal
We have already referred to one aspect of the principles governing the grant of leave to appeal from interlocutory decisions - namely, the requirement that the applicant for leave generally establish that substantial injustice would occur if the decision is not reversed. The same cases to which we referred in that context establish that, again generally speaking, an applicant for leave must demonstrate that the interests of justice require the grant of leave because the original decision was either wrong or attended by sufficient doubt to justify the grant of leave. With those principles in mind we turn to the grounds of appeal (which are summarised above at [24] ‑ [25]).
Those parts of the grounds of appeal which assert that the judge at first instance erred by failing to take into account, or not appropriately weighing various relevant factors can be immediately dismissed. It is clear from the reasons for decision that the judge at first instance weighed carefully the various considerations which were said to result in unfairness or injustice if the application for a declaration that Mr Trajkoski was a drug trafficker was to continue. There can be no doubt that she was aware of, and considered the nature and significance of those proceedings, the various causes of the delay in their resolution, and the possible consequences which the destruction of the exhibits at trial might have upon the forensic inquiry to be undertaken in the course of those proceedings. While it is true that the reasons do not specifically refer to the destruction of the cannabis plants themselves, it was the judge at first instance who had ordered their destruction, and the application for a permanent stay was conducted on the tacit basis that the cannabis plants themselves were no longer available for scrutiny. It is inconceivable that the judge at first instance would have overlooked that fundamental fact. In short, there is nothing in the reasons of the judge at first instance, or in the conclusion at which she arrived, which would support the proposition that the exercise of her discretion miscarried in a way which would justify appellate intervention in accordance with the principles enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ).
Many of the particulars given in support of ground 1 of the appeal, and much of the written submissions advanced in support of that ground focus upon the unfairness which is said to arise from the destruction of the documentary exhibits at trial, in the context of the earlier destruction of the cannabis plants themselves. The additional evidence which the court received deprives those propositions of any force. Replicas of the documentary and photographic exhibits at trial, identical to those tendered at trial, will be available at the resumed hearing of the application for the drug trafficker declaration. Counsel representing Mr Trajkoski at that resumed hearing will have no difficulty whatever in cross‑examining witnesses by reference to those replicas, as it has now been established that they are identical to those exhibits which were tendered at trial.
For these reasons we concluded that the decision of the judge at first instance was neither wrong nor attended with sufficient doubt to justify the grant of leave, and that in any event no substantial injustice would arise from her decision being allowed to stand. Leave to appeal was therefore refused.
Costs
The DPP applied for the costs of the appeal on the basis that the proceedings were civil in character, and in accordance with the usual rule that costs follow the event. Counsel for Mr Trajkoski opposed the application on the basis that if the additional evidence had been adduced before the judge at first instance, it is unlikely the appeal would have been brought at all. He submitted that the appellant should have his costs up until the time of the application to adduce additional evidence, and that there should be no order for costs in respect of work done thereafter.
We decided that in the circumstances of this case, there should be no order for costs. That is because we accepted the proposition that if the DPP had put the additional evidence before the judge at first instance, there is a very real prospect that the appeal would not have been brought at all. Given the lack of any adequate explanation for the failure to put that evidence before the judge at first instance, the DPP must therefore bear some of the responsibility for the commencement of the application for leave to appeal.
On the other hand, Mr Trajkoski continued with the application for leave to appeal after the additional evidence was disclosed. He must therefore bear the responsibility for the costs incurred after that time. In the broad brush approach commonly applied in the exercise of the court's discretion with respect to costs, in our view, the responsibilities of each party to the appeal effectively cancelled each other out, with the result that it was appropriate for each party to bear their own costs.
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