Weiss v The Queen

[2005] HCATrans 308

[2005] HCATrans 308

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M112 of 2004

B e t w e e n -

BOHDAN WEISS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 APRIL 2005, AT 10.59 AM

Copyright in the High Court of Australia

MR P.F. TEHAN QC:   If the Court pleases, I appear with my learned friend, MR S.T. RUSSELL, for the applicant.  (instructed by Falcone & Adams)

MR J.D. McARDLE QC:   If the Court pleases, I appear with my learned friend, MR C.B. BOYCE, for the respondent.  (instructed by the Office of Public Prosecutions (Victoria))

HAYNE J:   Now, Mr Tehan, I understand what you have to say about the question of the proviso and we may have to hear what Mr McArdle has to say about that matter, but why should this Court get into this question of counsel’s conduct?  Why should we be running around looking at the video of what occurred at the trial, looking again at the decision of the Court of Appeal on that aspect?

MR TEHAN:   The special feature of the misconduct ground is that the misconduct here was to continuously, in the presence of the jury, allege that the judge was corrupt.

HAYNE J:   Yes, we have read all that.  Now, why should we get into these issues when the Court of Appeal has dealt with them and it said in the end the trial did not miscarry because of the way the judge dealt with it?  Why should we be interested?

MR TEHAN:   The Court of Appeal merely dealt with that issue in terms of it being a distraction to the jury.

HAYNE J:   Just so.

MR TEHAN:   We say it is far more powerful than that.  No more serious case of misconduct can exist than a case where counsel for an accused continuously, throughout the course of the trial, in the presence of the jury ‑ ‑ ‑

HAYNE J:   Well, let that be assumed.  That may or may not have consequences outside the courts, but so far as this trial is concerned, the Court of Appeal concluded that the trial did not miscarry on that account.  Why should we second‑guess that?

MR TEHAN:   I understand that, your Honour.  We say the Court of Appeal are wrong, that is why.

HAYNE J:   Yes.

MR TEHAN:   I mean, that is what is comes down to.  We say the Court of Appeal got it wrong.

HAYNE J:   Well, perhaps we might be assisted by hearing what Mr McArdle has to say, particularly in connection with the proviso aspect.  Mr McArdle?

MR McARDLE:   Your Honours, the evidence that was said to be admitted by error related to an association that the applicant had with a young woman who turned out to be 14 and that appears by inference at least to disclose a criminal offence and the Court of Appeal said that the evidence was inadmissible.

Now, it was relevant in this way, that the court – or at least the case was unusual insofar as Ms Horstead, who was the applicant’s de facto, received from him a confession to this murder on the night that it occurred, and that was in late 1994.  It was not until about the year 2000 that she reported that to the police by which stage two things had occurred of note.  Firstly, she had separated from the domestic set up and, secondly, she was in the United States and the Court will recollect that her evidence was given by way of video link.

Now, her evidence also was to the effect that she was concerned for her own wellbeing in the event that if she went to the police and relayed to the police what had occurred between her and the applicant, she felt, she said, that she would be less at risk if she departed the family home using another reason and the other reason in this case was the fact that he was having an affair with this young woman, who is identified as Renee in the papers.  So that was really the point of what that was all about.  That is how it found its way into the case.  Now, concerning the application of the proviso ‑ ‑ ‑

HAYNE J:   Well, do you say that the evidence was properly received or not?  Do you say the Court of Appeal erred in concluding ‑ ‑ ‑

MR McARDLE:   No.  We would have to accept what their Honours said, your Honour.

HAYNE J:   Right, so what then do we do about the proviso?

MR McARDLE:   What you do is this, your Honours.  You do not, it is submitted respectfully, interfere with its application in the proceedings. What has happened in this case is this, that the jury must have accepted Ms Horstead’s evidence.  The evidence of the association with the girl did not impact upon her evidence; that is to say the inadmissible aspect of that.  It had nothing to do with her evidence.  The jury probably accepted the police evidence as to the confession, although the confession was not in its entirety.  The Court will recollect that he said that he struck her, but struck her only once and there was no intent to kill, but there was not, of course, in Ms Horstead’s confession or – and supported in turn by the two visitors who were at the family home before this event occurred on that night where he demonstrated hostility towards the deceased and threatened to kill her.

Now, if they accepted and one, it is submitted, should be confident that they did accept the Horstead evidence, then they would have acted on that and this piece of evidence did not have any impact upon the deliberations.  In this connection his Honour Justice Callaway, who wrote the leading judgment in the case, said that it was not used according to the directions or, indeed, according to the addresses of counsel as a matter of credit as far as the applicant was concerned.  Secondly, his Honour expressed the view that it did not impact upon the evidence either of Horstead or of the applicant and, thirdly, it occurred – well, it played, if you like, a relatively minor part in the whole of the proceedings.

His Honour notes that the applicant had admitted to other criminal behaviour in the course of his evidence.  That is not identified in the court’s judgment, but probably refers to the conversation which is, I think, included in the evidence of one of the police officers.  The Court again will recollect that when he was arrested for this offence he sought to speak to a detective who was known to him from days gone by.

HAYNE J:   Now, understanding the respondent would say that whatever test is applied, the proviso was engaged.

MR McARDLE:   Yes.

HAYNE J:   What are we to do with what is said in paragraph 70 of the judgment of Justice Callaway at pages 352 and 353 where his Honour says if one test is applied the proviso operates, if another test is applied the proviso would not operate and a new trial would have to be ordered?

MR McARDLE:   The effect of the proviso to the hypothetical jury, if I can put it that way, not the jury in question, that might be applied in cases, for example, of circumstantial evidence – and such a case would be Festa – in which there was an error in direction, but there was a body of uncontested evidence.  The Court will recollect your Honour Justice Hayne delivered a judgment – important judgment in the case.  There was a body of uncontested circumstantial evidence and the Court concluded the proviso would apply because the conviction would flow from that uncontested circumstantial evidence.  The test there was in terms of a hypothetical jury, if you like.  This is not one of those cases.  This is a case where you know the jury accepted Horstead’s evidence as to the confession.

HAYNE J:   Is the last sentence of paragraph 69 of his Honour’s reasons at 352:

The jury were not going to believe Ms Horstead –

et cetera, an essential step in his Honour’s reasoning?

MR McARDLE:   No, it is an observation, if I can put it that way, perhaps in support of the conclusion that he came to.  We say the important thing is that Horstead was accepted.  The jury could not have convicted – this case is a little unusual – unless they accepted what she said, or perhaps the police, and you can be confident that they did that.

HAYNE J:   Yes.

MR McARDLE:   And in those circumstances the question is to what extent this inadmissible material would have impacted upon that, and we say it would not have.  His Honour said it would not have and we adopt what his Honour said.  Now, would you like me to move on to the next paragraph that ‑ ‑ ‑

HAYNE J:   Well, it seems to me at the moment that in paragraph 70 two tests are put forward, that two tests are put forward to different effect.  The proviso applies in one form or another throughout Australia.

MR McARDLE:   Yes, with the exception we say - well, in one form or another ‑ ‑ ‑

HAYNE J:   The ground is starting to move a little beneath your feet, I think, Mr McArdle.

MR McARDLE:   No, no, not that I am conscious of, your Honour, but I might be the last to realise it.  Your Honours, Justice Callaway drew attention to the expression from time to time of the hypothetical jury and we say that Festa, for example, is such a case, because you had a body of circumstantial evidence which was uncontradicted upon which the jury would have to act on leading to the conclusion of guilt.

Now, this is not one of those cases.  You approach it differently in this case.  You say they could not have convicted this person unless they accepted what Horstead said in distinction to what he says or what the police said.  In those circumstances, if you then consider, it is submitted, the effect of the illegitimate evidence upon her evidence, upon the police evidence, we say there would be no effect at all and the proviso is to be applied.

Now, in paragraph 70 his Honour, we say, drew the – or at least made some observations in passing as to the various expressions that had been used in association with the application of the proviso, and there are a lot of those.  They essentially mean the same thing with the exception of the question of the hypothetical jury or the jury in question.  We say this is a case in which you can act upon the jury in question rather than the hypothetical one which was deployed, for example, in Festa.  That, your Honours, is our position, I think.

HAYNE J:   Yes.

MR McARDLE:   I assume that the Court does not require us to make any submissions concerning counsel’s behaviour?

HAYNE J:   Well, Mr Tehan may well say that I have cut him off on that aspect of the matter, but I, for my own part, do not wish to hear on that aspect of the matter.

MR McARDLE:   Very well, your Honour, then I will not say anything more about that.

HAYNE J:   Yes.

MR McARDLE:   Your Honours, I am not at all sure I can assist you any further.

HAYNE J:   Yes, thank you, Mr McArdle.

MR McARDLE:   If the Court pleases.

HAYNE J:   Mr Tehan, if there were a grant limited to ground 2.1 of the draft notice of appeal.

MR TEHAN:   Yes.

HAYNE J:   Is there anything further you would wish to add?

MR TEHAN:   No, your Honour.  I mean, we take it the Court is against us on the other ground, but, no, we do not have anything to add.

HAYNE J:   Yes, well, Mr Tehan, we are of the opinion that the decision of the Court of Appeal concerning the issue of misconduct of counsel is not attended by doubt.  There will be a grant limited to ground 2.1 in the draft notice of appeal.

MR TEHAN:   Thank you, your Honour.  If the Court pleases.

MR McARDLE:   If the Court pleases.

HAYNE J:   Now, I would have thought that the case would occupy at most a day?

MR TEHAN:   Yes, I think about a day, your Honour.

HAYNE J:   At most a day, Mr Tehan.

MR TEHAN:   If your Honour pleases.

HAYNE J:   Yes.

AT 11.13 AM THE MATTER WAS CONCLUDED