Zhang v The Queen

[2006] HCATrans 423

[2006] HCATrans 423

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S42 of 2006

B e t w e e n -

ANNA ZHANG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2006 AT 12.11 PM

Copyright in the High Court of Australia

MR G. NICHOLSON, QC:   May it please the Court, I appear with MR B.W. CROSS for the applicant.  (instructed by Kinghan & Associates)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GUMMOW J:   Yes, Mr Nicholson.

MR NICHOLSON:   Your Honours, there is a preliminary matter in this special application and that is the extension of time.  I do not understand that to be ‑ ‑ ‑

KIRBY J:   No, there was a delay over Christmas, as I understand it.

MR NICHOLSON:   There was, yes.

GUMMOW J:   That is not opposed?

MS ABRAHAM:   That is not opposed, your Honour.

GUMMOW J:   You have that extension.

MR NICHOLSON:   Your Honours, this application is made as basically four matters of general importance.  The first involves the proper construction of the Evidence Act and, in particular, section 98 and other sections within Part 3.6.  Secondly, the way in which the trial judge should carry out the necessary task during a trial concerning the applications and use of evidence admitted under that part.  The third matter of general importance arising is that the case throws up for stark determination the nature of the decision made by a trial judge and whether or not it is properly construed as discretionary and, if so, the proper role and function of the Court of Criminal Appeal in this State in reviewing such decisions.

Of necessity, the matter also brings under focus the decision of the Court of Criminal Appeal in this matter in the majority decision in which the majority seek to construe a decision or, rather, proceedings of this Court on a special leave application in a way which I will characterise at this stage as novel and which, as it stands, is binding, it would appear, on trial judges within this State.

KIRBY J:   In the uniform Evidence Act is this a provision that exists throughout those jurisdictions which have adopted the Act?

MR NICHOLSON:   Yes, it applies in New South Wales and all federal courts and in Tasmania and it is in standard format as far as this case goes, these provisions, yes.

KIRBY J:   And I think in the ACT, does it not?

MR NICHOLSON:   And in the ACT, yes, your Honour.  Thank you, your Honour.

KIRBY J:   Yes, and it is under active consideration in Victoria, I understand.

MR NICHOLSON:   I think it is under consideration but not advanced further.  Your Honour, the circumstances in which the matter arose are sufficiently set out in the judgments of the majority and on this dissenting judgment in the Court of Criminal Appeal.  In substance, what arose for consideration of the trial judge was whether evidence sought and relied upon by the Crown could be properly treated as falling within the ambit of section 98, coincidence evidence.

The first point I seek to make – and I do not wish to dwell on it further as it is amplified in writing – is that for the reasons outlined in the dissenting judgment it is contended that much of the evidence could not be so characterised.  However, the trial judge found otherwise.  That evidence comprised of the finding of an illicit substance in three different locations.  The Crown sought to rely on the indictment containing two counts, all of the evidence in count 1 as admissible and relevant and within the ambit of section 98, in count 2, and vice versa.  For the reasons set out in the dissenting judgment, we seek to argue, if granted leave, that certain of that evidence in the particular case was not capable of satisfying those provisions.

KIRBY J:   But was not your client’s essential case that she was an innocent dupe of Mr Tu?

MR NICHOLSON:   Yes.

KIRBY J:   The essential problem that you face is that the first batch of crystal was received before she even knew Mr Tu and therefore that the proposition that Mr Tu was the person and not her is really not a viable proposition.

MR NICHOLSON:   I think one needs to take further that question. 

KIRBY J:   I am sure you have to because otherwise your case withers on the vine and explodes.

GUMMOW J:   What do you say about paragraph 24 on this subject of Ms Abraham’s written submissions at page 183?

MR NICHOLSON:   I say that in order to understand my friend’s submissions in paragraph 24 one needs to understand what precedes it in those submissions.  Those submissions are based upon erroneous premises.  The first is that each of the judges found that the evidence was otherwise admissible.  It is not so, specifically not so.  If one needs to confirm that, one goes to paragraphs 135 to 137 of the majority judgment where the majority say that the evidence was clearly not admissible under section 98 and then that raises the question which I prefaced earlier, whether it was admissible on some other basis.

The basis for which it was contended by the majority judgment and supported by my friend is that by an application of a process of reasoning that was sought to be extracted from a special leave application in this Court in the matter of Ellis that in a trial of joint counts evidence admitted at the trial is for that reason admitted unless there is an application under section 136 or 95 to limit its use.  That is at the moment a binding decision on trial judges in this State.  It is also erroneous.  The way I characterised it earlier was “novel”. 

In a trial of joint counts evidence admissible in the trial of joint counts is admissible in that count.  It does not follow by the hearing of the two counts in the same proceedings that it must be admissible in the trial and it is somehow for the opponent or the defence to seek to limit its use to one such trial as the majority stated and is relied upon by my friend in effectively supporting the proposition “What does it matter?”  The evidence was not properly admissible against both counts.  The majority are wrong – and we seek to argue that point – in the application of the reasoning of this Court in the special leave application of Ellis to arrive at that determination. 

If I may return, please, to the initial submission, and that is that when the trial judge was confronted with the issue of admissibility under section 98 and found as he did, it was sought to agitate in the Court of Criminal Appeal that that decision was wrong.  In addition to taking what we say was the erroneous approach based on Ellis in determining that appeal, the court also, in the majority judgment, applied the reasoning of this Court in House and treated a question of admissibility under section 98 as effectively a discretionary matter and thereby constrained its determination to the rules applicable to the challenge of judicial discretion under House rather than to address the question of whether in fact and simpliciter the evidence was inadmissible as stated by the majority at paragraphs 135 to 137 of their judgment.

The approach taken by the majority was that if you seek to challenge the finding as a question of law concerning admissibility by the trial judge then the process of reasoning by the trial judge involved an evaluative consideration by that judge of what the jury were likely to assess in terms of probative value, then to characterise that test as effectively a discretion and then to apply House.  Two things follow.  First, we say, and we seek to argue if granted leave, that that majority judgment concerning the role of the trial judge in forecasting the significance or probative value to be attached by a jury is itself wrong.  It flows from a decision of the Court of Criminal Appeal in this State called Fletcher and, effectively, this matter, Zhang, adopted Fletcher and followed it in the majority judgment.  The dissenting judgment criticised it.  Naturally, I find myself on the side of the dissenting judgment.

KIRBY J:   I often do too.

MR NICHOLSON:   I was hoping to find some common ground, your Honour.  The combination effect of this decision is that the majority judgment has set an erroneous test, we say, for trial judges, now binding in this State, in determining that question.  That in seeking to challenge that decision we say that the court has failed to exercise its proper jurisdiction by too narrowly confining itself – too narrowly confining itself under the principles in House.

Your Honours, I would like to move on.  Before I do may I just simply indicate the consequences there follow for the conduct of each trial involving that type of discretion, if it be one – and we contend it is not – under section 98.  We contend that the word “jury” is not to be found in the statute and has been read in.  It is a question for the trial judge to make that determination himself for the reasons set out clearly in the dissenting judgment, not by reference to the jury.  In relation to the role then of the trial judge, if we be correct, as we seek leave to argue, at the present time trial judges are being required to follow that which is arguably incorrect as a direction to them as to how they will carry out that function. 

Now, in terms of the appeal itself, the appeal in the way the majority approached this task failed to exercise the jurisdiction of the appellate court properly by too merrily confining itself to a discretionary challenge when in truth the decision in Fletcher is open to challenge, the decision in Zhang is open to challenge.  It is not a discretionary matter and it is a question of admissibility as a question of law.

There can be no doubt that viewed simpliciter the majority of paragraphs 135 to 137 found it was inadmissible under 98.  That moved forward then to a general consideration of whether the discretion, as the majority saw it, miscarried.  We say the question did not arise and it was an unfair characterisation – too limiting a characterisation rather than unfair – in that function.  To carry forward then to apply the reasoning as the majority did, “But what did it matter, it was all in evidence”, is to misunderstand the application of the words of this Court in the special leave application in Ellis. 

Ellis is not authority, nor do I know of any authority, but I do not believe there has been any, to the effect that when the trial of two counts is held jointly evidence admissible in one, for the reason only of the joint trial, is admissible in the other unless you seek a limitation under section 136 or section 95.  That is what is stated by the majority here and that is the current binding law and we seek to agitate the argument that it is wrong.    Now, his Honour in the dissenting judgment did not make specific reference to Ellis as the majority did, however, his Honour proceeded to find the different items of evidence were admissible on the different counts.  It follows that his Honour in the dissenting judgment is at odds with the majority in seeking to apply Ellis in the way they did.

Your Honours, that basically takes me through the four issues.  There is an answer now to the question again posed by your Honours and it is this.  There was a version of innocent explanation offered by the applicant.  At the minimum she was entitled to have that verdict determined on the evidence properly admissible in the particular counts to which…..or which it was admissible.

KIRBY J:   This is like a Domican point?

MR NICHOLSON:   It is a similar point, yes.

KIRBY J:   That because you do not know on what basis the jury used it you have to assume that it might have used it on an irrelevant count.

MR NICHOLSON:   Quite so.  We do know that in very direct ‑ ‑ ‑

KIRBY J:   The problem is, though, that this is all crystal and it is all importation, it is all using your client’s warehouse, it is crystal ‑ ‑ ‑

MR NICHOLSON:   That is, with respect, not so.

KIRBY J:   Well, the crystal was found in her warehouse.

MR NICHOLSON:   The drug is common.

KIRBY J:   And the drug is found in a cupboard in her own home.

MR NICHOLSON:   Yes.

KIRBY J:   It is very, very strong evidence.

MR NICHOLSON:   It is not out of the same shipment, of course.

KIRBY J:   No, but, equally pure, as I understand it.

MR NICHOLSON:   With respect, that is not so. There are inconsistencies in the purity and inconsistencies in the packaging, inconsistency in the location.  For the reasons outlined in the dissenting judgment, her situation was she claimed she did not know how Mr Tu came to put the material in her.....Now, be it credible or incredible, that is the position she went to the jury with.  In relation to the material in her cupboard, she gave an innocent explanation and attributed it to custody from Mr Tu and that is entirely consistent with Mr Tu having what he had in his residence.

There is not the benchmark of similarity.  Let me make it easier, I think, in very direct terms, for myself by conceding some ground.  I do not doubt for a moment that on a circumstantial basis, forgetting section 98, that the material found at Mr Tu’s residence would be circumstantially available in the case of the second count of possession in her cupboard.  However, it could not support, for the reasons outlined in the dissenting judgment, it could not support a proposition of the glaring improbability, as it was placed before the jury, of drugs being found in Tu’s residence and her residence unless she knew.  The only issue was knowledge.  That is, quite frankly, a non sequitur and quite impermissible reasoning.  To elevate it to the glaringly improbable must have affected that count. 

It is one thing to have circumstantial evidence consistent with her version that he gave her those drugs in the cupboard and for him to have the circumstances of the drugs, fine, but to elevate it to support the inference of knowledge by her because of the glaring improbability of such events having happened stretches any logical line of reasoning.

KIRBY J:   I see the point of that, but on the other hand there is a question now since Weiss v The Queen as to whether or not the Domican principle was too nice, too refined, and whether or not you do not in an appellate court look at all of the material and look at the totality as an appellate court and reach your own conclusions on how the matter is properly decided.

MR NICHOLSON:   Accepting that the development of the law has come along after Weiss.  Your Honours, dealing with that question of the application of the decision in Weiss, the decision in Weiss and particularly one of the judgments in Weiss indicates ‑ ‑ ‑

KIRBY J:   Was not Weiss a unanimous opinion of the Court?

MR NICHOLSON:   I thought there was a particular judgment of your Honour.

KIRBY J:   No, I think in Weiss we struggled and struggled and got a common view on section 12 of the ‑ ‑ ‑

MR NICHOLSON:   Yes.  I have confused Weiss and the more recent case applying Weiss in the High Court of Nudd.

KIRBY J:   Nudd, yes.

MR NICHOLSON:   In that situation your Honour did consider in detail the application of Weiss.  Without going into your Honour’s reasoning ‑ ‑ ‑

KIRBY J:   The last word has not been written on this, but I was reversed in the High Court in Domican.  I sat in the Court of Criminal Appeal in that and gave a leading opinion.  I am not bearing any scars because I could see the logic of it.  You just do not know how the jury reasoned and therefore they might have used material relevant to one count on another count.  So that is how Domican – but since Weiss the general issue of the proviso seems to require that appellate courts look at the matter in generality and perform their own function as they do in civil appeals.

MR NICHOLSON:   In terms of that argument, if I may ‑ ‑ ‑

GUMMOW J:   The red light is on, Mr Nicholson.

MR NICHOLSON:   I do apologise.  I did not see it.

GUMMOW J:   Yes, but finish what you are saying.

MR NICHOLSON:   Certainly.  In terms of the decision in Weiss, the last word has not been written.  The Court of Criminal Appeal did not apply the proviso.  The Court of Criminal Appeal in the majority judgment applied the second leg of section 6(1) having first agreed at paragraphs 135 through 137 that it was not admissible under section 98.

KIRBY J:   I realise that, but we always have to keep our eye on the issue of a miscarriage.

MR NICHOLSON:   I will come directly to it then cease.  It then went on to consider by what ‑ ‑ ‑

GUMMOW J:   We are aware of that, Mr Nicholson.  What more do you want to say?

MR NICHOLSON:   Misapplication of the principles of House and section 6(1) and did not for that reason consider the application of Weiss or the proviso.  My submission on that is it would be premature on this application to embark upon that venture as this Court is not well equipped to make a judgment in terms of Weiss on the record before the Court.  Thank you, your Honours.

GUMMOW J:   We do not need to call on you, Ms Abraham.

It is true, as counsel for the applicant has argued and as Justice Basten points out in the Court of Criminal Appeal, that there are a number of difficulties and doubts about the meaning and application of section 98 of the Evidence Act (NSW) and with comparable legislation in other jurisdictions.  On an appropriate occasion, these points, or some of them, could well attract a grant of special leave to appeal to this Court given the significance of this legislation for several jurisdictions of the Commonwealth.

However, we are not convinced that this is the occasion for the Court’s intervention.  The prosecution case against the applicant appears to us to have been particularly strong.  The applicant’s essential case was that she had been the innocent victim of the co‑accused, Mr Tony Tu.  However, a batch of the narcotic drugs involved in the charges against the applicant were imported before the applicant knew Mr Tu.  This is not a suitable case in which to review the provision made in section 98 of the Evidence Act.

We should say in so deciding that we are not convinced that the applicant has suffered a miscarriage of justice otherwise warranting the intervention of this Court, whether on section 98 or any other ground that is put forward.  Accordingly, special leave is refused.

AT 12.35 PM THE MATTER WAS CONCLUDED