Trivett v The Queen

[1992] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S69 of 1991

B e t w e e n -

ROSS NORMAN TRIVETT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 4 AUGUST 1992, AT 3.19 PM

Copyright in the High Court of Australia

Trivett 1 4/8/92

MR G.R. JAMES, QC:  May it please the Court, I appear for

the applicant with my learned friend, MR T.A. GAME.

(instructed by Colin W. Love & Co)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR G.R. BARR, for

the respondent. (instructed by the Director of

Public Prosecutions (New South Wales))

MASON CJ: Yes, Mr James?

MR JAMES:  Your Honours, the gravamen of this present

application is that there was a procedural

miscarriage in the trial, a procedural miscarriage

which may have arisen, as it were, fortuitously or

coincidentally, but which in the result occasioned

quite severe prejudice to the applicant's case.

MASON CJ:	What was the prejudice?
MR JAMES:	The prejudice was that the applicant's counsel

was in effect converted into an advocate for the

prosecution on a false issue which diverted the

trial and the Court of Criminal Appeal from the

true issue, that being whether the applicant knew

that the opals were stolen. Indeed, that is made

out, Your Honour, by an examination of the judgment

of the Court of Criminal Appeal, a couple of short
passages, which show how they dealt with the

matter, in particular at page 19 of the application

book, the bottom five lines. The way in which the

Court of Criminal Appeal looked at the matter appears to have been consistent.

So, the defence hoped to raise a doubt as to

whether the opals shown to those men by the

appellant were the same as those in

Mr Lersak's brief case.

Again, at pages 48 and 50:  It was submitted first that his Honour

should have given greater emphasis to the

question whether the opals seen to be handled

by the appellant on 27 December were those

taken from Mr Lersak's home. That was the

central issue in the case, and it could not

have failed to have been at the forefront of

the jury's consideration. It was adequately

dealt with in the summing up, in the course of

which his Honour described this question as

"quite vital" -

It is certainly quite vital;	it is the whole
foundation -

Trivett 2 4/8/92

to the doctrine of recent possession -

as this Court had pointed out as early as Trainer v

Reg. At page 50, the first paragraph:

The issues were more fundamental -

namely, were the opals in his possession on

27 December those stolen on 26 December, and

if so, did the appellant know that they were
stolen? In respect of those matters, it seems

to me that the summing up was adequate, both

in flagging the issues, in reminding the jury

of the relevant evidence, and in explaining

how the doctrine of recent possession was to

be applied ..... The thrust of the appellant's
case, however, was that the opals in his

possession were not the stolen opals.

Then at the bottom of the page:

The appellant also sought leave to appeal

against severity of sentence, on the basis

that his possession was temporary, and was

only for the purpose of having the opals

valued for the men who stole them.

Your Honours, the thrust of the appellant's case at

all times was, "These men came to me and asked me

to have these opals valued. I had them valued and

returned them." What caused the question of

whether they were the same opals to be activated

was that the Crown led evidence to show that the

identifying mechanism for the opals was this

valuation list.

In the Crown case itself were the seeds of its

own destruction, as counsel realized, and from the

Crown witnesses was able to obtain the evidence

that the valuation sheet shown by Mr Trivett to the

valuers contained a different figure to that

deposed to by Mr Lersak as accompanying his opals.

Thus counsel tested out by cross-examination an obvious chink in the Crown armour which the Crown

had not bothered to examine. The application to

reopen was accompanied by the comment that perhaps

there was a lack of communication.

Mr Partridge's evidence was completely fresh

evidence, and it was only when Mr Lersak was

recalled that Mr Partridge came forward the next

morning to confirm that there had been two lists.
All of this might have caused no problem at all had

corroborating witnesses with the evidence of the Crown examined and compared the evidence of its course.

Trivett 4/8/92

Then when the case came forward, defence

counsel, by exploring that question, appeared to be

embarking on the main thrust of his case. It was

not the main thrust of the case but it was
converted into such apparently in the theatre of

the trial and in the theatre of the Court of

Criminal Appeal by the fact that the Crown chose to

recall that witness, which diverted attention
practically and forensically to that issue.

Indeed, Shaw's case itself, dealing with another matter as we accept, and the closing of the

Crown case deals with this very phenomenon in a

somewhat different way, when the court emphasizes

that to send the jury out with the last thing

ringing in their ears being the witness in the

reopened Crown case itself creates a problem of

timing and a problem for the structure of a

criminal trial.

A criminal trial is not simply the placing of

evidence holus-bolus, as it were, before the jury.

It is a structured exercise which relies very much

on the impression that the jury gets as to the role

of those appearing and as to the way in which they

have performed their functions. To fail to have

discharged the jury in this case, bearing in mind

it was a very short case and no real cost or

inconvenience would have been occasioned thereby,

and to allow a second trial to have proceeded, if

necessary almost immediately, but immediately on

the real issues, would have avoided the display of

what seemed to be the defence counsel apparently

advancing a Crown case and the Crown then

thereafter calling the evidence to support the

efforts of that counsel.

In our submission, the Court of Criminal

Appeal have fallen into error when they say that

there was forensic advantage to be obtained by the

defence since they could point to the confusion in	the Crown case. Indeed, the very course that
occurred was to point to confusion in the defence case, not the Crown.

We accept that Brown v Petranker states a

principle which, for the purposes of recalling a

witness, is an effective statement of the legal

proposition, but in our submission, although the

Court of Criminal Appeal stated the principle, it

did not apply it to this case in such a way as to

avoid the procedural miscarriage.

If I might take Your Honours very shortly to

the Court of Criminal Appeal's decision at page 33.

It cites Mr Justice Clarke in Brown v Petranker.

The court appears to have specifically enunciated

Trivett 4 4/8/92

at page 34, line 6, the Brown v Petranker

observation that:

Ordinarily the interests of justice would

favour the grant of leave where the evidence sought to be adduced had been overlooked and

the other party would not be prejudiced by the

fact that the additional evidence is to be

given after cross examination and

re-examination of the witness has been

completed.

Then two propositions are set out, firstly:

deliberately refrained from leading the
evidence ..... in the hope of gaining some

tactical advantage -

or secondly:

or it appeared that the opposing party would

suffer prejudice if leave was granted -

In our submission, those words, "or it appeared

that the opposing party would suffer prejudice" and

"the other party would not be prejudiced", are not

to be construed so narrowly as to limit it to

examination in terms of calling evidence. What

happened in this case was effectively, in our

submission, the Court of Criminal Appeal holding

that unless it would have led to an evidentiary

change rather than a mode of presentation change,

there would be no prejudice.

The citation from Henning v Lynch - and we

accept that that is a criminal case which goes

somewhat further than Brown v Petranker - points

dut that the test may well be wider than Brown v

Petranker. In the final words of the citation:

"A very fit and proper thing to allow the

evidence to be given unless there is some very

good reason" .

We are not suggesting that the principle is so wide

that one would necessarily bar the evidence.	We
are suggesting, however, that the defence who
sought to make its case on that issue by

cross-examination was led into that in

circumstances where to continue to permit them to

suffer the forensic disadvantage thereof was to

unduly confine the application of a test which may

well be right - certainly right in civil cases, and

right as expressed in Hargreaves v Hilliam in

criminal cases.

Trivett 5 4/8/92

Not only that; the Court of Criminal Appeal

itself categorized the error in two ways and

diverted itself from the true vice by splitting the

two categories. Your Honours will see in the

judgment there is firstly the question of simple

reopening, and secondly the question of simple
reopening in effect to call evidence that had not

been called at the committal.

That assume very real significance in this

case because the expeditious technique of using a

simple paper committal based on the statements had

been adopted. For such a system to avoid

miscarriages and problems at trial, it is essential

that the defence be able to rely on the material
that they are supplied with to indicate that that

material does contain the real gravamen of the evidence, yet it did not in this case, because

there had been no proper examination of the

material to note the inconsistency between the very
small group of Crown witnesses.

The Court of Criminal Appeal referred to the

discretionary considerations and the trial judge's
error at page 38, where it noted that the trial

judge had fallen into error by an assumption based

on Wasow that the Crown was entitled to recall the

witness as a matter of right, notwithstanding

prejudice, but in our submission confined that

error by itself reaching the view that there was no

prejudice in the sense that no other submission was

made but that there should be a discharge, yet

there was no examination of the question of whether

discharge would be effective. It did not have to

simply be effective in terms of calling evidence;

it could be effective in allowing the trial to

proceed before a jury untainted by the mistakes

that had been made earlier on a clear appreciation

of the issues.

MASON CJ:  In the materials on the paper committal, did it

emerge that Mr Marshall had handed the packages to

Mr Lersak for the purpose of securing another independent valuation?

MR JAMES: That Mr Marshall - - -

MASON CJ: Mr Marshall was the owner; they were in the

possession of Mr Lersak. It was Mr Lersak, was it

not, that was going to take the steps to procure

the independent valuation?

MR JAMES:	Yes, Your Honour.
MASON CJ: What I wanted to know was:	did it emerge in the

paper committal or in those materials that another

valuation was to be obtained?

Trivett 6 4/8/92

MR JAMES:  I am unable to assist Your Honour of my own

knowledge, but I am informed at the bar table that

there was something in the paper committal to that

effect.	My friend is referring to something that
was led at the trial.	I am unable to assist

Your Honour as to whether the materials were there

at the paper committal. I can say that at page 29

of the application book, in Mr Lersak's recalled

evidence, appears the reference to Mr Lavender and

Mr Partridge coming to his house to value them.

I can say that at page 30, it is noted in

the Court of Criminal Appeal that he was

cross-examined and said that he had informed police
of the second valuation and to a possibility of

misunderstanding. It was put to him, as is noted

at page 31, that he had changed his evidence

because he had been in court and heard the evidence

that had been given by Messrs Taylor and Chapman.

It was plainly to suggest recent fabrication, and yet no evidence was called from the police to

suggest that any such account had ever been given

to them. Indeed, the absence of any such account

being given to them was relied upon in order to

show that the lack of communication, accident,
absence of foresight basis for being able to avail

oneself of the discretion was utilized.

It was the following morning that Mr Partridge

was called, and no statement of his had been

provided until some 30 minutes before he was giving

evidence.

MASON CJ: But earlier Mr Marshall had given evidence that

he had given the packages to Mr Lersak for the

purpose of getting an independent valuation of the

stones and he was cross-examined by counsel for the

applicant at the foot of 21, top of page 22, and he

extracted from Mr Marshall the statement that an

independent valuation of approximately $13,000 had

been obtained.

MR JAMES:  But also at the bottom of page 21, Your Honour, he extracted that Mr Marshall did not:

know who the person was that Charlie Lersak

took them to for an independent valuation.

So that we have got the information that there is

an independent valuation, that of approximately

13,000, but we do not have the evidence or an

indication of the evidence of that witness.	It is
a point within a very, very narrow compass.

It is a point which is, however, increasingly

going to plague the conduct of trials in New South

Wales as the full-blown committal is dispensed

Trivett 4/8/92

with, and it involves the necessity to be able to

rely upon the material presented by way of the

paper committal and to rely on the prosecutor

having presented to him or her that material in a

form in which they can be aware, with the

continuous pressures on prosecutors by the volume
of prosecutions in New South Wales, so as to avoid

this sort of thing happening in the future.

It had real impact here because, as I pointed out, in effect it seems to divert from the true

issue rather than define it. Indeed, the whole
thing is somewhat reminiscent of Mrs Trainer and

the lack of evidence that the sheep were stolen

rather than the true question of whether or not

this man knew the opals were stolen.

Of course, in our submission, to hold, as was

held at page 39, that the principles of avoiding
procedural miscarriage referred to in Shaw do not
apply to attempting to build the defence case on

cross-examination is, in our submission, plainly

wrong, because in many criminal cases, the very

evidence on which you will be proceeding, as here,

is in fact cross-examination. One does not have

any other case but to show that the Crown has not

adequately discharged its onus or, alternatively, out of its own witnesses, that indeed there is no case of the kind involved.

Really, without referring in further detail to

the authorities that are cited in the outline of

argument, we perhaps should reiterate that which

appears at the bottom of paragraph 5 on page S,

that what has happened is rather than precisely

considering the merits overall of whether there was

a procedural miscarriage such as to mitigate in

favour of a discharge and a new trial, the Court of

Criminal Appeal and the trial judge have, the second more narrowly than the first, placed the

considerations in such pigeon holes as to be

diverted from the true prejudice occasioned to the

accused.

In these circumstances, oversight by the Crown

in such a way as to cause such a problem as

occurred at trial, as in this case, can only be

rectified in a short case by starting again and

letting the true issue be exposed. They are the

submissions that we would put on this application.

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

The Court considers that the decision of the Court

of Criminal Appeal was plainly correct. The

application is refused. Court will now adjourn.

AT 3.35 PM THE MATTER WAS ADJOURNED SINE DIE

Trivett 8 4/8/92