Voyka v The Queen

[2008] HCATrans 80

[2008] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B47 of 2007

B e t w e e n -

JOHN VOYKA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 8 FEBRUARY 2008, AT 12.59 PM

Copyright in the High Court of Australia

MR G.M. McGUIRE:   Your Honours, I appear with my learned friend, MR J.J. SHERIDAN, for the applicant.  (instructed by William Royds Lawyers)

MR S.D. HALL, SC:    Your Honours, I appear with my learned friend, MR M.J. McCARTHY, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions (Brisbane Office))

HAYNE J:   Yes, Mr McGuire.

MR McGUIRE:   Your Honour, this a matter in which an extension of time is required.  There is affidavit of ‑ ‑ ‑

HAYNE J:   Is that opposed, Mr Hall?

MR HALL:   No, it is not opposed, your Honour.

HAYNE J:   Yes, go on, Mr McGuire.

MR McGUIRE:   Thank you, your Honour.  Your Honour, there are two matters to be agitated.  With respect to the point about the evidence of Mr Sampson, there is not a lot more to what I can add to what is contained in our outline.  Mr Sampson was the accountant of Mr Voyka.  He had provided letters that on the face of them would justify the position of the applicant and thereby be relevant to his honesty.  He said at the trial that all of those matters were done at the instigation of Mr Voyka.  The point is made that his evidence was clearly challenged as to its veracity in the trial and that there ought to have been a warning given about his evidence.  As I say, I cannot really add too much more to that point.

HAYNE J:   A warning given because his evidence should have been treated as unreliable on what basis?

MR McGUIRE:   On the basis that I had in my outline, your Honour, that he had been threatened, according to him, by the police although he, of course, subsequently said that threat had been removed or was not acting upon his mind when he subsequently provided the statement and that he had been given a letter of comfort by the Crown indicating that he would not be prosecuted.  So there were powerful inducements or threats held out to him that might have persuaded him to lessen his own position and thereby inculpate in a way that might not fairly have been done to the applicant. 

Your Honour, the other point that is to be agitated is a Jones v Dunkel point and perhaps if I can somewhat enlarge upon that.  On day three of the trial a witness Furzeman was called who was one of the 44 people alleged to have been employees.  He was employed by Mr Martin Benson.  The majority, if not all, of the others had been employed by a witness, Mr Ellington, whom the Crown called at the trial.  Benson was one of the employees, or who had been classified as employees by the Tax Office in the letter in 1995.  It seems, certainly so far as his statement was concerned, he was of course not called to the trial, that he was a subcontractor and engaged others at the NQEA site as subcontractors.  The letter assumed significant importance in the summing‑up at page 954 of the book.

Your Honour, the argument in respect to the not calling of Benson commenced at page 139 of the appeal record.  Perhaps if I might refer you to how the argument about the admissibility of his evidence arose because it assumed significance that was in error in fact.  There was an objection taken by junior counsel at the trial to some evidence that Mr Furzeman was going to give about a conversation he had with Mr Benson.  There had been, it seems, at the trial some ongoing discussions between the parties about what evidence was going to be allowed to go in and so there had been no necessity for a ruling by the trial judge about what evidence in fact could go in.  The learned junior said this when responding to a question by the trial judge as to what the issue was here.  She said:

The issue is that the discussions and the legal argument revolved around statements by Mr Ellington to various people.  Discussions have been had between my friends and Mr Byrne –

who was her leader –

and in respect of those statements, and as they arise, in relation to witnesses from day to day, those discussions have been ongoing.  And there seems to be agreement, in relation to those statements, there has never been any conversation in respect of Mr Benson, or any indication that there’s some allegation that Mr Benson is acting on some particular authority, or what that authority is –

So it was simply an indication that we have not even spoken about Mr Benson, so at the moment there has been no agreement with respect to it.  The Crown indicated that they would not pursue that matter at that point.  They did indicate, however, that he was in a similar position to Mr Ellington, that is, Mr Ellington had employed all of the other workers, had employed them on the basis that they were subcontractors, had told them all that they were subcontractors.  It was also indicated that he would be giving evidence about some time cards having been sent to him and on forwarded to Mr Voyka and that he was acting under instructions from Mr Voyka. 

The discussion then about him not being called arises the following Wednesday morning.  Mr Furzeman was called on the Friday and, as I say, it was indicated that he would be called.  He had provided a statement and had given evidence at the committal proceedings.  He had been brought over from Perth and it seems on the Wednesday morning he was in the precincts of the court.  It seems that on that Wednesday morning the leading prosecutor gave notice to the defence that in fact he did not propose to call the witness Benson.  He accepts during the course of the argument that that notice was given late. 

The justification for doing so was that in view of a subsequent admission that had been made by the parties, it seems after the evidence of Mr Furzeman, his evidence was no longer relevant or necessary.  There was no suggestion that there had been a decision made that the evidence of Mr Benson was untruthful, simply, that in light of the admission that had been made, his evidence was no longer relevant.  One, of course, might beg the question as to whether or not the defence, if they had of known that that was going to be the attitude of the Crown, might have made that admission and, indeed, obviously they were wanting him to be called, could quite easily have not made that particular admission and so forced the Crown to have called him. 

In any event, the decision was made to notify the defence on the Wednesday morning that this witness who was there from Perth was not going to be called.  He refused even to make him available for cross‑examination and made the magnanimous offer that he would have him available by phone to the defence if they required it as part of the defence case.  The relevance of his evidence to the defence was outlined by Mr Byrne at page 288.  Perhaps if I can just read briefly from that:

Mr Benson, one can see from reading the statement, certainly does not assist the prosecution case.  His name appears on the July 1995 letter as one of the persons said by the Australian Tax Office to be an employee.  He was called, as I understand it and so I am instructed, at the committal on the basis that he was an employee.  His evidence made it quite clear that he considered himself not – that he was a subcontractor, he was told he was a subcontractor by Mr Voyka and that he passed on those instructions to various other persons whom he recruited on behalf of ABC as to their role, as subcontractor, as to their responsibility as to tax.  He’s clearly a relevant witness and there’s no suggestion that the prosecution find him to be other than a truthful witness.  In my submission he should be called.  Indeed, if my friend wishes, there’s no need to lead evidence from him, he should be called and made available for cross‑examination. 

The real objection to the Crown calling him seems to be outlined subsequently in the argument which appears at page 291 about line 30 ‑ ‑ ‑

HAYNE J:   You are spending a deal of time describing the course of events at trial.  What is the live issue at trial to which this person’s evidence would have gone?

MR McGUIRE:   The live issue was the state of mind, that is, the honesty of the applicant.  He had, it seems on the evidence, recruited two people to do his recruiting for him; one Mr Ellington who was called, one Mr Benson who the Crown decided not to call.  Both said the same thing, that is, that they were told by him that he was to employ people as subcontractors.  Mr Benson himself would have given evidence that he himself was employed as a subcontractor, considered himself to be a subcontractor, employed people himself as subcontractors. 

HAYNE J:   Now, you say a Jones v Dunkel direction should have been given.  What content would that direction have had?  What would the jury be told?

MR McGUIRE:   That he was one of the people named in the 1995 letter from the Australian Tax Office, that they had heard that he was the person who recruited people at the NQEA site, he was not called as part of the Crown case, therefore, the jury could infer that his evidence was not going to be helpful to the prosecution so far as proving that Mr Voyka was dishonest in portraying or believing that the people he was employing were in fact subcontractors rather than employees.

HAYNE J:   That is, the direction that should have been given on your submission was that evidence that the jury had not heard would not have assisted them in concluding that the accused was guilty?

MR McGUIRE:   Yes, your Honour.

HAYNE J:   Really, at that point the jurors’ eyes begin to revolve in their head, do they not, when they are told that people you have not heard would not help you decide the issue?  What is the purpose of the direction?

MR McGUIRE:   They had not heard from him, but his name had been mentioned.  As I say, his name was listed in the letter from the Tax Office in 1995.  His name came up then in the evidence of Mr Ellington that he, Mr Benson, was the one who was doing recruiting at the NQEA site and his name, obviously, must have been read to the jury at the commencement of the trial as to a witness that was going to be called.  There was, in my submission, quite clearly no proper basis upon which to not call the witness. 

The reason that was given by the prosecutor at the trial was, in my submission, a disingenuous one. 

What they were wanting to avoid, of course, was having before the jury some other evidence of other dealings that Mr Voyka had had with someone else who had subsequently been classified as an employee, that he had regarded himself as a subcontractor, was always told by Mr Voyka that that was how he was to engage people and did in fact do that.  So it was directly relevant to his state of mind. 

The submissions made in the respondent’s argument is to this effect, that it was not in dispute at the trial that there were other workers engaged by the applicant on different terms.  If one looks at paragraph [29] of the judgment of the Court of Appeal, his Honour Justice Jerrard says:

This Court was informed that the evidence at the trial was silent as to the status of people engaged by ABC other than the identified 44, i.e. there was no evidence before the jury as to whether one, some, most or all of those were employees or subcontractors.  There was no evidence of any basis for a belief about their status different from the evidence of the basis for any belief Mr Voyka had about the status of the 44 –

So it would seem that it was certainly put before the Court of Appeal and I cannot see anything within the transcript to the contrary that the evidence was completely silent about anybody other than the 44 and that they were all in fact employees, not subcontractors.  So it was significant evidence that was not allowed to be put before the Court because of the decision by the prosecutor.  I do not know that there is much more I can add to what is in the material.

HAYNE J:   Thank you very much, Mr McGuire.  We need not trouble you, Mr Hall. 

We are not persuaded that it is arguable that there has been a miscarriage of justice in this matter.  Special leave is accordingly refused.

The Court will adjourn to Tuesday, 26 February 2008 at 10.15 in Canberra.

AT 1.13 PM THE MATTER WAS CONCLUDED