VIM v State of Western Australia

[2007] HCATrans 306

[2007] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P1 of 2006

B e t w e e n -

VIM

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 15 JUNE 2007, AT 2.37 PM

Copyright in the High Court of Australia

MR S.B. WATTERS:   May it please your Honours, I appear for the applicant in this matter.  (instructed by Thames Legal)

MR R.E. COCK, QC:   If the Court pleases, I appear with my learned friend, MR C.J. HENDERSON, for the respondent.  (instructed by Department of Public Prosecutions for Western Australia)

HAYNE J:   Yes, Mr Watters.

MR WATTERS:   Your Honours, there are a number of grounds that were set out by the applicant when he filed the material in person, but can I deal specifically with the ground relating to the jury bias.  That commences at page 153 of the application book.  Just by way of illustration, I had sent through yesterday, which I understand has only recently been distributed to your Honours, a large amount of transcript, but can I summarise the relevance of that in one sentence.  It is simply this:  what that transcript contains is the prosecution opening and in that prosecution opening – and it is agreed between my learned friend and I – that the name of the applicant’s son, who is referred to in the judgment as S – his name was Sean – he is referred to by the prosecution no less than 16 times.  There are references to the word “brother” and things like that, but I am specifically referring to the number of times he is referred to by name in the prosecution opening. 

If I can then come back to what was said by the Court of Appeal with regard to this point, it is my submission that there was a failure by the Court of Appeal to apprehend the facts which affected the decision of the lower court on this point.  Your Honours, starting at page 153 of the application book your Honours will see there the history that is set out with regard to this.  The position was that the foreperson was a female referred to as B and she had a best friend – would your Honours allow me to use first names rather than initials?  It perhaps makes it a bit easier.

HAYNE J:   As long as they are not especially distinctive of people.

MR WATTERS:   No, they are simply Anglo‑Saxon names.  Your Honours, the foreperson was a young lady called Bethany and she had a best friend called Zoe, referred to as Z.  The applicant’s son went out with Zoe for nearly three years, so the applicant’s son is going out with the foreperson’s best friend.  There is an incident, an acrimony, between the foreperson and the applicant’s son that leads to two assaults at a pub involving other males at the request of the jury foreperson approaching the applicant’s son.  None of this is in dispute.  From the application book it is set out at pages 154 and 155 and it goes from line 30 through to – page 155 is the incident. 

So there is extreme acrimony between the foreperson and the applicant’s son to the point where at line 30 on page 155 there is some damage done to the foreperson’s car by Sean, the applicant’s son.  The foreperson is demanding money and threatening court proceedings.  Your Honours will note at the bottom of page 155 that in fact the applicant’s former wife paid that money to the foreperson and you will see there that was banked on 13 July 2004.  The trial started in January 2005, so it is only about six months before the trial started. 

The trial then commences on 18 January and the prosecutor reads out the names of the witnesses she is going to be calling and she does not mention Sean’s name.  The trial then proceeds and about half past 2 on the 18th the first complainant, the main complainant referred to as L who has about 30 counts relating to her, gives evidence‑in‑chief.  That is the afternoon of the 18th, cross‑examination all through the 19th, cross‑examination all through the 20th, then on the morning of the 21st, if I take your Honours now to page 153 of the application book, it appears that when it must have become apparent to the foreperson that he was going to be called as a witness by the defence, she raises the issue with the trial judge.  Your Honours will see there around lines 10 to 20 on page 153 Justice Wheeler notes that the communication was not read into the transcript, but around line 20 it states:

her Honour said that from the communication it appeared there would only be a problem if the complainants’ brother was to be called to give evidence.

I would submit, and I appreciate it is a matter of conjecture, that it became readily apparent because she would appreciate immediately that he would come to give evidence and would recognise her, his name having been read 16 times in the opening by the prosecution.  It would be incredible if she did not realise that this person who she had been involved with acrimoniously a number of months before, who she had threatened court proceedings against, was going to be coming to give evidence in support of his father.           It goes on down the bottom of that page where her Honour then questioned the juror and her Honour says:

He’s a friend’s ex-boyfriend or anyway.  Have you mentioned this to the other members of the jury or has there been any discussion about this at all?

THE JUROR:   No discussion, I just mentioned on the way, “Oh my goodness, I think I might know something about evidence.”

Her Honour then goes on to talk about perception and the juror then says:

I think it would be quite difficult for me as well.

One would have to wonder there why.  The point I would seek to emphasise is when one then comes through to Justice Wheeler’s ‑ ‑ ‑

HAYNE J:   Just a moment.  The trial judge discharges the foreperson?

MR WATTERS:   Yes.

HAYNE J:   She does not discharge the whole of the jury?

MR WATTERS:   No, and that is dealt with ‑ ‑ ‑

HAYNE J:   Was there an application made to discharge the whole?

MR WATTERS:   No, there was not, and that is dealt with in the appeal judgment.  That is dealt with in the applicant’s affidavit.  As he says at page 156 of the application book around lines 10 to 20, at that time he did not appreciate who she was.  It did not come to light until later that she was who she was, that is his ex‑girlfriend’s friend.  Your Honours will see there he says that had he known, he would have instructed his counsel to apply to discharge the jury, so that is the reason why he did not apply for the jury to be discharged.

HAYNE J:   Trial counsel did not seek to challenge the discharged juror’s account recorded at page 153 that she had not discussed the matter with other members of the jury beyond saying, “I think I might know something about evidence”?

MR WATTERS:   Your Honour, no, but, with respect, in fairness there was no – I appreciate entirely senior counsel could have stood up and raised it.  There is no invitation from the trial judge if she had any other matters to raise.  But just on that exchange ‑ ‑ ‑

HAYNE J:   This is a question of what course is to be taken about the trial.  Do you discharge one, do you discharge all?

MR WATTERS:   Your Honour, can I deal with that point?

HAYNE J:   Yes.

MR WATTERS:   The test is set out in Webb and Hay v The Queen is the reasonable apprehension of bias on the part of a fair‑minded and informed person.  Here is a foreperson who has heard the name of the applicant’s son read 16 times, who has sat as a foreperson of the jury through 80 to 90 per cent of the bulk of the main complainant’s evidence, then when it becomes apparent that that young man may well be coming to give evidence, she raises an issue with the judge and she is discharged.  In my respectful submission, in the mind of a fair‑minded and informed person, we are talking about a foreperson who had threatened legal proceedings against the applicant’s son a matter of months before the trial started.

HAYNE J:   That is why she was discharged.  The question is not whether she appeared to be unable to return a fair verdict, because that is dealt with at least to the extent of discharging her.  The question is:  does her discharge and what happened before her discharge mean that the jury which ultimately returned the verdict was imperfectly constituted?

MR WATTERS:   Can I deal with that point.  Your Honours, none of the jury was brought in and asked independently, “Has the foreperson mentioned anything to you?”, et cetera.  In fact, what her Honour said – and this is on page 159 of the application book – basically to the jury in her charge to them around line 20:

You are asked when you go home at night and on weekends don’t discuss this case with anyone other than the people on the jury –

et cetera.  That clearly includes the foreperson.  The applicant does not know what the foreperson may or may not have said to the jury in the jury box.  Clearly in Webb and Hay we had the ostensible actions of flowers given to a friend of the deceased’s mother in the foyer of the court, et cetera, the juror brought back into court and questioned about that.  People were well aware of what had taken place.  When one looks at the undisputed relationship and connection between the foreperson and the applicant’s son, then, in my respectful submission, there is a grave danger that she may well have said things to the jury in the jury room or commented upon it. 

One does not know that but one is – in my respectful submission, the applicant does not have to prove that because he could not.  It is simply what would a fair‑minded and informed person make of this view.  This was not, with respect, after the opening or after the first morning of the evidence.  This was three and a half days into the complainant’s evidence, the complainant to whom 30 of the counts relate.  So, in my respectful submission, your Honours, there is a grave danger that a miscarriage of justice occurred. 

When one looks through the unchallenged evidence that was before the Court of Appeal on pages 154 and 155 as to the acrimony between the foreperson and the applicant’s son such that an error occurred with regard to that matter, as I have already indicated, her Honour Justice Wheeler dismissed it to an extent by saying his name was not read out as one of the witnesses.  As I have pointed out to your – in fact this is on page 158 of the application book.  Her Honour said:

The situation was that the foreman did not realise she knew anybody involved in the trial until it had been running for three days.

That, with respect, is almost incredible to accept that that was the position of the foreperson.  Her Honour then goes on to say:

Anything she might have contributed to any discussion amongst the jurors to that point could clearly be of no concern.

But that is the danger because the danger is, in my submission, she would have invariably known that this involved the applicant’s son.  She knew the applicant’s son, she knew him in a hostile way.  So when one looks at that sentence by Justice Wheeler, “Anything she might have contributed to any discussion amongst the jurors to that point could clearly be of no concern”, it is reversed; it would be of concern.  In fact her Honour goes ‑ ‑ ‑

CRENNAN J:   On that page at about line 28 it is recorded that:

The brother was not a prosecution witness, and so was not mentioned when the names of the prosecution witnesses were read out to the jury panel.

MR WATTERS:   Yes, I indicated that.

CRENNAN J:   I thought though you said before that there was something like 16 mentions in the prosecution’s opening to the effect that he would be called to give evidence in support of his father.

MR WATTERS:   No.  When the prosecutor read out the names of the witnesses, he was not one of the names.  There were only about six or seven names.  But when the prosecutor then opened the facts of the case – and we are dealing with a family situation involving the applicant and his wife, his two stepdaughters and Sean was his full son ‑ ‑ ‑

CRENNAN J:   Half-brother.

MR WATTERS:   Half-brother to the complainants.  When the prosecutor outlined the facts which took some time to go through, she made mention of his name some 16 times.  With respect, she mentioned his name Sean a number of times.  He was the applicant’s son.  She did not refer to him as Sean and the surname but it is obvious that the trial involved the person with the surname of the applicant and that was his son.  She did not say he would be called as a witness, but the point I would seek to make with regard to that, Justice Crennan, is that when it became apparent that he would be called as a witness, that is suddenly a trigger for her to raise it. 

One must ask on the other side of the coin:  why did she raise this at the time she did?  It is because it had crystallised that he was going to be called as a witness.  One would speculate she realised that she would be pinged.  He would come into court and say, “I know her.  She set some of her friends on to me at a pub a few months ago and she’s my ex-girlfriend’s best friend and she threatened court proceedings against me six months ago until mum paid the bill”.  Those are the submissions I would make on that ground, your Honours, unless there is anything further on that ground.

The other ground I would seek to address is the conflict the applicant says has arisen between the decision of the Court of Appeal in this State in Donaldson and the decision of the Queensland Court of Appeal in Phillips. Those two cases were contained in the applicant’s book of material that has been sent to your Honours. In relation to that, an amended supplementary summary of argument has been filed. I do not seek to be repetitive of what is set out in that. It is conceded that the Queensland legislation does not have an equivalent to section 31A. When one looks at clause 7 to Schedule 1 of the Criminal Procedure Act in Western Australia which for your Honours’ benefit is set out in Donaldson – it is page 16 of the book of material.  At the bottom of that page there Justice Roberts‑Smith set out what in effect is the trigger for joinder of charges.  In subsection (a):

form or are a part of a series of offences of the same or a similar character –

When one compares that to the legislation in Queensland in Phillips’ Case, which is page 43 of the applicant’s materials, when one looks at the relevant section there, section 567(2) of the Criminal Code in that State, your Honours will see there the wording is, although a little more voluminous, the point is the same with regard to clause 7 of Schedule 1.  That is in the middle of subsection (2)

form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.

There is the issue, as set out in the applicant’s amended summary of argument, with regard to what the applicant submits is conflict between the decision in Phillips and the decision in Donaldson, notwithstanding the import of section 31A in the Western Australian legislation.

HAYNE J:   It is necessary also, is it not, to take account of the provisions of 585(2) of the Code as it stood at the time of the applicant’s trial?

MR WATTERS:   Yes, it is.  On that point, when the Court of Appeal dealt with that, that was page 104 of the application book, when the court looked at the original decision of District Court Judge Jackson to refuse severance and his Honour there in the first few lines on page 104 pointed out – Justice Wheeler quotes:

he pointed out that propensity and similar fact were not the only bases to the Crown’s submissions.  Additionally (and his Honour said, importantly) –

His Honour then goes on to talk about the fact that the younger complainant could give evidence of the close relationship between the appellant and the other sibling but, in my respectful submission, she could do that even if there was not joinder of the charges.  She could come to court and give evidence as to the fact she had seen the applicant in her sister’s bedroom and of the close relationship between her sister and the applicant and vice versa.  So, in my submission, that would be a wrong peg to hang the hat on. 

The Court of Appeal then went on to say at around line 30 that his Honour was correct when he talked about the artificial situation that would be created if one part of a letter that was written was tendered and not the other but, in my respectful submission, that is something that also could quite easily be cured by way of, for want of a better phrase, cut and paste or putting the material forward.  That would not be sufficient to get over what was the test with regard to whether or not the evidence was admissible.  Of course, the Court of Appeal in dismissing that ground found that the first instance decision of Judge Jackson to refuse severance was correct and therefore dismissed the ground and went on to say that anyway there would be joinder if the matters were dealt with today.  Of course, that would be a separate matter for the court to consider in light of all the material.

Your Honours, unless I can assist you any further, those are the two questions I would seek to address you on orally.  I would support the questions and submissions that were filed by the applicant with regard to other matters contained in the application book.  If the Court pleases.

HAYNE J:   Thank you, Mr Watters.  Mr Cock, can you explain to me why an indictment alleging 44 counts was preferred against this applicant and how the presentation of so many charges can be supported?

MR COCK:   The attempt is always made, your Honour, to present an indictment containing a reasonable number of charges against an accused person to facilitate the rational conduct of the trial.  It happened to have been thought in this trial because there were two separate complainants that approximately half the number of each was an appropriate number to

present to the jury, and it is our contention that the jury were able to rationally and logically deal with those because, as your Honours know, the verdict was not ‑ ‑ ‑

HAYNE J:   They returned differential verdicts, I understand that, but I must say for my own part, and I speak only for myself, 44 counts seems to me to require some justification.  All this is done and gone but 44 counts is a very, very large presentment.

MR COCK:   Yes, your Honour.

HAYNE J:   We need not trouble you further, Mr Cock.

There is no reason to doubt the correctness of the conclusion reached by the Court of Appeal that there could not be a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the jury at the appellant’s trial, as that jury was constituted when it returned its verdict, did not discharge their task impartially.

The other matters advanced by the applicant concerning the refusal to sever the presentment and concerning the admissibility of the evidence of conduct towards one complainant in the trial of the charges concerning the other complainant were to be resolved, as the Court of Appeal did, by the application of the relevant statutory provisions including, in particular, section 585 of the Criminal Code (WA) as then in force and section 31A of the Evidence Act 1906 (WA).

We are not persuaded that it is in the interests of justice generally or in the particular case that there be a grant of special leave to appeal and accordingly special leave to appeal is refused.

Adjourn the Court to Monday, 18 June 2007 at 2.15 pm in Brisbane.

AT 3.01 PM THE MATTER WAS CONCLUDED