Truica v The Queen

[2005] HCATrans 13

[2005] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P37 of 2004

B e t w e e n -

DANUT TRUICA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 FEBRUARY 2005, AT 1.38 PM

Copyright in the High Court of Australia

MR M.J. McCUSKER, QC:   May it please the Court, I appear with my learned friend, MS A‑M.E HORRIGAN, for the applicant.  (instructed by Andree Horrigan)

MR R.E. COCK, QC:   If it please the Court, I appear with my learned friend, MS S.H. LINTON, for the respondent.  (instructed by Office of the Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr McCusker.

MR McCUSKER:   Your Honours, this application seeks to raise three special leave points, but before going to that I should point out that the application is well out of time and there is an affidavit in support of the application for an extension of time.

GLEESON CJ:   Is that opposed, Mr Cock?

MR COCK:   It is opposed solely on the ground, your Honours, that in our submission there is no reasonable prospect of the matter gaining special leave, but we do not see any additional feature.

GLEESON CJ:   Then you have the extension of time you seek, Mr McCusker.

MR McCUSKER:   Thank you, your Honours.  The first point sought to be raised is a matter which was described by this Court in Kelly where it was adverted to but not decided at page 279 of the report as an important point and that is the question of whether lies allegedly told – this is at paragraph [21] of the report in Kelly – in that case it was false allegations against the police, allegedly an admission of making such false allegations.  The question, in broad terms, of whether lies allegedly told out of court and not videotaped constitute an admission for the purpose of what I call the videotape legislation has been a vexed issue and ‑ ‑ ‑

GLEESON CJ:   That was simply added as an additional ground by one of the members of the Full Court, was it not, as a reason for the decision?

MR McCUSKER:   Yes, your Honour.  Justice Anderson, at application book page 126, said it was a difficult question, but he did not answer the question because he felt that it was unnecessary to do so.  In the case of Justice Pidgeon he said that it did not constitute an admission but went on to say that even if it did there were exceptional circumstances which justified the admission of the evidence.

GLEESON CJ:   So it is a question that would not arise if we were against you on the main point?

MR McCUSKER:   On the main point of exceptional circumstances?

GLEESON CJ:   Yes.

MR McCUSKER:   That is true, your Honour.  That is quite true.  On the question of whether – that is 1(b) of our first point.  Whether there were exceptional circumstances or whether it was not practical to videotape has to be viewed against the light of - this Court has said in the decision given yesterday in Coates – the majority have said “in the light of all the circumstances”.

Now, the relevant circumstances here are that the alleged statement made by…..in which he allegedly denied having had intercourse at all were where the video was being prepared, where the policeman who was doing so admitted in evidence that he could have switched on the video at any time.  Certainly, he could have asked the question on‑video of Truica but he did not ask – the question was not asked – it was not put to him that he had said prior to the videotaping, off‑video, that he had denied having had intercourse at all.

The notes that were taken raise a real question because they are out of sequence with the evidence that was given by the police in terms of the timing of the taking of the notes.  Indeed, going back to the point about whether he could have been asked the question on‑video, again, that is, “Did you not tell us a moment ago?” or, “What did you tell us just before this?” or, “Didn’t you tell us before we started videotaping that you had not had intercourse?”, that question could have been put, was not put, but instead of that question being put it was put to the applicant that if he did not give them some explanation it would go badly against him, or words to that effect.  So what was said on‑video about this matter, about statements being made, was suggestive that he had said nothing of any explanation at all before the videotaping started.

In the Coates decision, your Honours, Justice McHugh at page 38 of the report referred to what was said by this Court in Kelly about the protective purpose of the legislation requiring a liberal construction of the relevant section - that was at paragraph 101 – and at paragraph 104 referred again, indeed his reasons focus on the importance of the purposive construction to be given to the provisions.

He also said at page 41 of his reasons in this Court, dealing with a question of whether there was a reasonable excuse - an exceptional circumstance is one of the factors referred to for purpose of a definition of “reasonable excuse” - referring to MDR, that:

Wicks J held that the conduct of the police officers was relevant to the question whether it would be “in the interests of justice” to admit evidence of admissions by the accused.  His Honour thought relevant matters included whether non-compliance with the provisions was deliberate or the product of a reckless disregard . . . Such matters are also relevant in determining whether there was a “reasonable excuse” for not recording the admission.  Most importantly of all, however, is whether the officers attempted to have the off‑camera admission recorded.  If, on‑camera, the accused denies making an off‑camera admission, it will be highly relevant in determining whether there was a “reasonable excuse” “for there not being a recording on videotape of the admission”.

GLEESON CJ:   The relevant facts appear at page 125 in paragraph 33, do they not?

MR McCUSKER:   They do, your Honour, yes:

Weskin freely admitted that the video equipment could have been activated at any time by the flick of a switch.  His explanation for not turning on the equipment . . . was that it was his practice not to commence a video‑recording until he had obtained the consent of the suspect.  This he could not do without informing the suspect of the allegations –

But, of course, on their evidence, which was disputed, of course, by the applicant, on the police evidence they had informed him of the allegation and he denied having had any intercourse at all.

GLEESON CJ:   What did he say when he went on tape?

MR McCUSKER:   When he went on tape he said that he had had intercourse but it was with consent and that is the position he always maintained.  He denied at the trial and at the voir dire that he had ever said that – or ever denied to the police that he had had intercourse.  So his case always was that he had had intercourse but it was consensual.  Looking at what appears at paragraph 33, your Honours, what the police officers say there is, of course, subject to the same problem of all problems connected with so-called verballing, that is, that is what they say happened.

They say that the applicant had made these lies.  These alleged lies, that is of not having had intercourse, were quite contrary to what he said both at his trial and, of course, on videotape and they were used to great effect by the prosecution against him and, indeed, great emphasis was placed on their importance by the trial judge, as we have noted in our reply at page 199 of the application book where we refer to what the trial judge said - at application book page 79 it appears, at about point 8 - where the trial judge’s direction to the jury said:

It is the case of course that telling lies to the police when inquiries are being made about a crime is of great significance and a statement shown to be false may, in certain circumstances, go indirectly to show something, for instance, consciousness of guilt, but it may be something from which an inference as to guilty knowledge can be drawn.

You can rely upon it to lead to an adverse conclusion and base a finding of guilt upon the telling of a lie to the police when inquiries are being made –

So there is no doubt about the significance that this police evidence had at the trial and no doubt whatever, we say, that the jury would have taken that very much into account.

It opens yet another gap in the legislation which has a protective purpose.  If police are permitted to give evidence that before – this was immediately before videotaping – something was said to them which can then be used in this way, albeit denied by the applicant, by the accused person, and never referred to on the videotape itself, never once mentioned, for example, it would have been open to the police, and one would have thought natural, if this denial of intercourse had been made, for the police to say at some point in the video, “Well, why did you tell us before we started the session that you hadn’t had intercourse”, but nothing of that nature was said.

It may be said in response to that the problem might be that that could raise a question of whether the prejudice outweighed the probative value, but as this Court said in Coates, if that were an issue at the trial then the remedy is clear, it could be deleted.  The videotape could be edited.

It is our submission, your Honours, that first there is a real issue which has not yet been resolved by the courts in Australia, nor by this Court, although it referred to it as an important point, as to whether alleged lies made off‑camera constitute admissions for the purpose of the videotape legislation.

The second question of whether there could be, in this case, exceptional circumstances, in our submission, has been not directly dealt with but statements of principle by the majority of this Court in Coates would negate a conclusion that there were exceptional circumstances, or, to put it more broadly, a reasonable excuse in this case.  If this Court were to conclude that what the police say just before the video – allegedly say, and what the applicant allegedly answers just before videotaping in these circumstances is admissible then it would severely damage the purpose of the videotape legislation.

In Coates, Justices Gummow and Callinan, in their joint judgment at paragraph 153 refer to:

the approach of the Court of Criminal Appeal of Western Australia –

in Coates as something that –

would add to the definition of “reasonable excuse” a definition neither stated nor intended by the legislature such as, “an admission made during an interview not initiated by the police” or “an admission that a person was anxious to make off‑, but not on‑camera,” a definition which, if adopted, would defeat the purpose of section 570D.

Likewise, Justice Kirby in his reasons was to the same effect.

On the first point of the ground of appeal we submit that the question of whether an off‑video statement of this nature is an admission for the purpose of section 570D is, of itself, a very important point.  We accept that, your Honours, if there were clearly exceptional circumstances in this case, or not practicable, so as to constitute in the interests of justice a reasonable excuse and allow an exception, then the question of whether a lie off‑video – an alleged lie off‑video - is an admission would fall away, but, in our submission, the question of whether in this case there was a reasonable excuse, or the proposition that there was a reasonable excuse is contrary to the statements of principle and the observations made by the majority in this Court of which I apprehend neither of your Honours was a member in Coates.

Turning to ground 2, your Honours, the decision of this Court in the Director of Public Prosecutions v WJI which was an appeal by the Director of Public Prosecutions from a decision of the Full Court of the Northern Territory, in our submission, the reasoning in that case supports our contention that for the purpose of the crime of aggravated sexual penetration without consent and aggravated indecent assault, the requirement is that the prosecution prove beyond reasonable doubt that the accused in having intercourse knew and subjectively knew that the intercourse was without the consent of the complainant.

GLEESON CJ:   I thought we mentioned in WJI that this was a longstanding difference between the so‑called common law States and the so‑called Code States and the only question is where the new, and we were told different, Northern Territory Code fitted in.  I did not think that we said anything in that case that would cast doubt on the correctness of what I might call the accepted view in the Code States.

MR McCUSKER:   We say it would cast doubt on it, your Honour, yes.  In WJI at paragraph [37] of Your Honour the Chief Justice’s reasons, section 31 of the Northern Territory Code is referred to.  The respondent in this case argues in its outline of argument that section 24 of the Western Australian Code, in effect, covers the field and that really is the debate that has been a live debate and still is as to whether section 24 covers the field or whether there is, as there was in a common law crime of rape, a requirement to prove not only the act of intercourse without the complainant’s consent, but that the accused subjectively knew or else proceeded recklessly in disregard of whether the complainant was consenting. 

HAYNE J:   Now, given the jury’s findings on the two other counts, even if you were right about the law, and the point is arguable, how would it arise in the face of the verdicts returned on the unlawful detention and the indecent assault?

MR McCUSKER:   I accept, your Honour, that that does raise a problem, but it is not an insurmountable problem.  We have to look at the totality of the matter.  The accused had against him this alleged lie out of court.  The jury may have been really strongly influenced by that in reaching its verdict on all counts, so one cannot really take these issues totally in separation.  Had they not had that evidence, they may have taken a different view of the accused’s evidence and may have, in the end, concluded that they were not satisfied beyond reasonable doubt, if this was put to them, that the accused knew that the complainant was not consenting.  In other words they may have accepted his evidence that the intercourse was consensual and, in turn, not accepted the evidence of the complainant.  Now that is all I can say about that.  It is an important legal point.  We say that this is an appropriate vehicle for its determination because it arose squarely both at the trial and on appeal and there are differing views expressed in different States.

Ground 3, your Honours, we accept that ground 3 by itself would not warrant the grant of special leave and that is simply whether a balancing direction is necessary where, as required by the Evidence Act, the jury is told by the trial judge in his directions that there may be good reasons for the complainant’s delay in making a complaint. 

HAYNE J:   What is the delay we are talking about here? 

MR McCUSKER:   Ten minutes.

HAYNE J:   Ten minutes, as long as that.  Really, Mr McCusker, delay measured in minutes is really stretching, is it not?

MR McCUSKER:   One must look at all the circumstances, your Honour. 

HAYNE J:   Just so.

MR McCUSKER:   And the circumstances here were that she was with the police for that period of time but no complaint was made.  In fact, what she was saying to the police initially about these matters until she finally turned and said she had been raped was that she was concerned about the welfare of her female friend.  So that was what she was initially saying and during those 10 minutes which, of course, is a short time span it is important to appreciate she was not just standing mute.  May it please, your Honours, they are our submissions.

GLEESON CJ:   Thank you.  Mr Cock, we would just like to hear what you have to say in relation to the proposed first ground of appeal and the decision in Coates.

MR COCK:   In our respectful submission, your Honours, the first ground could only arise, that is the special leave point my friend develops, based upon a desirability of resolving what seems to be a conflict in some courts between whether a lie said to police, later established to be a lie and capable of constituting a consciousness of guilt, is an admission, only arises if your Honours uphold an appeal against the basis upon which the majority of the court found there was a reasonable excuse and deal with the respondent’s contention.

GLEESON CJ:   That is why I referred to Coates.

MR COCK:   Yes, and, in our respectful submission, when one reads Coates, we still would argue that there was a reasonable excuse.  In this case ‑ ‑ ‑

HAYNE J:   Before you get to that, on the point of whether this is an admission, is the point not concluded by the statutory definition in the Code?

MR COCK:   That will bear argument, but as I say it does not even ‑ ‑ ‑

HAYNE J:   Whether the admission is by spoken words or by acts or otherwise. 

MR COCK:   Yes.

HAYNE J:   Now, if 570D extends to admission otherwise than by spoken word or act, assumedly it may readily be extended to the implied admission constituted by certain lies told in certain circumstances ‑ ‑ ‑

MR COCK:   Yes.

HAYNE J:   Which attract Edwards directions and the like.

MR COCK:   Yes, entirely.  But that as I say would only arise, if there was not a reasonable excuse, on our contention really.

GLEESON CJ:   Yes, so what do you say about the decision in Coates on the question of reasonable excuse?

MR COCK:   Well, we would say there is still a discretion vested in the court trying the matter to assess whether there is a reasonable excuse.  Nothing said in Coates would exclude the factual circumstances before the primary judge, that is, that the police officer brought the applicant into the room and sought to explain to him why he was being brought there and sought to elicit his consent to participating in the video record of interview.  As your Honours know, in fact there was another officer present taking notes contemporaneously at the time and, unlike Coates, those notes were available and produced at trial although not tendered in evidence.

Your Honours have, therefore, a fairly accurate record, at least so far as two witnesses in the case are concerned of what transpired at that time, unlike again in Coates where there was a reliance upon a distant recollection unassisted by notes which themselves had been lost and in any event only prepared some time after the event.  That is one distinction. 

Secondly, this questioning was preliminary to the commencement of interrogation, unlike Coates where it occurred during a protracted period.  Your Honours will note from the record before your Honours in the appeal book that, I think, the applicant was only questioned on‑video for about 12 minutes and that occurred after he had been spoken to by police, had the process explained and given the opportunity, which he adopted, of ringing his solicitor, Mr Bowden and taking certain legal advice.

Now, it is our respectful submission that there was a reasonable excuse for the police not to have recorded what the applicant told them in response to, but not answering, any questions.  They were not interrogating him, they were in fact telling him what was to happen and indeed, asking him to refrain from commenting until the video was arranged, and despite that, he elicited a comment which, as your Honours appreciate, was

arguably not of a confessional nature but of strong evidential weight against him.

But we would say that the recent judgment of your Honours yesterday does not of itself automatically say that the trial judge or the two judges in the Court of Criminal Appeal got it wrong when they concluded there was a reasonable excuse.  What we say the judgment in Coates does is implore judges to take a purposive approach in construing the operation of the provision and again, nevertheless, we say this would be determined on the facts as to be presented to the court.  We say it would not automatically flow from the recent decision that the Court of Criminal Appeal or the primary judge was wrong.  That is our submission.

GLEESON CJ:   Yes, thank you, Mr Cock.  Yes, Mr McCusker.

MR McCUSKER:   Your Honour, dealing with the notes question first, as we have pointed in our submissions, although the police said notes were taken, the notes were not shown to Coates at the time of the interview.  It was said that they were available.  They were available at some later date, that is for the purpose of the trial, but Coates was never asked to look at the notes or to verify them either by signing them or in any other way and they were not referred to on the video and that is an important point that was made by the majority of this Court. 

Second, my learned friend says that the distinction between this case and Coates was that the alleged verbal discussion took place with Coates during a break and that is true but the majority of this Court in Coates has said that the interview by the police should be taken to embrace the entirety of the discussions they have with an accused person whilst in custody and not merely the videotaping itself.

My learned friend, when he says the police say that this is what happened and he was spontaneous and so forth, of course, raises the dilemma and a problem that the videotaping legislation has sought to address which is to avoid disputed verbals as they are called and the police in this case did nothing to alleviate the problem.  If, as they say, the applicant in this case did make these statements, why did they not take some steps to confirm what he had said either off‑video by getting him to sign the notes or on‑video by asking him again to repeat what he had allegedly said off‑video.  The absence of that, in our submission, points to the lack of any reasonable excuse or, in any event, it would not be in the interests of justice to admit this kind of evidence when the police have failed to avail themselves of opportunities to confirm what was said off‑video.  May it please the Court.

GLEESON CJ:   Thank you, Mr McCusker. 

We are of the view that in this matter there are insufficient prospects of success of an appeal to warrant a grant of special leave, and the application is dismissed. 

AT 2.07 PM THE MATTER WAS CONCLUDED