R v Roberts & Urbanec [2004] VSCA 1

[2004] VSCA 1

Court of Appeal (Vic)|2004-02-06|Before: BATT, BUCHANAN and CHERNOV, JJ.A.

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Court

Court of Appeal (Vic)

Decision date

2004-02-06

Before

BATT, BUCHANAN and CHERNOV, JJ.A.

Source

Original judgment source is linked above.

Judgment (185 paragraphs)

[1]

For the reasons set out above none of these grounds (including ground 4 of Urbanec, which relies on his first three grounds) is established. If, however, contrary to that conclusion, his Honour erred as alleged in any of those grounds, I am of the opinion, as explained later in paragraph [131] by reference to the paragraphs there mentioned that the proviso to s.568(1) of the Crimes Act applies.

[2]

Roberts, but not Urbanec, challenges his Honour's rulings upholding a claim of public interest immunity in relation to the documents within Item 3 of the schedule to the subpoena directed to the Chief Commissioner of Police and dated 17 September 2001. The documents sought were "all records of covert drug purchases or money advanced to or on behalf of Rosenes and Paton in respect of any covert drug operations by Victoria Police in the period May to September 1999 inclusive". In support of the claim of public interest immunity the Victorian Director of Public Prosecutions relied on a confidential affidavit and the Chief Commissioner of Police relied on two confidential affidavits and a non-confidential affidavit. None of those affidavits is in the appeal book and neither counsel referred to any of their contents or suggested that we should peruse any of the affidavits. Nor was the Victorian Director or the Chief Commissioner represented before us, though the respondent, the Commonwealth Director, acted as a contradictor. On the view I have formed, it is not necessary to consider whether the Director and the Chief Commissioner should have been represented or at least given notice of the ground (if, as I assume, they were not).

[9]

Bearing in mind that his Honour had access to confidential affidavits, I am not persuaded that it was not open to him to find or hold as he did in his principal ruling as to the claims those affidavits justified. Nor am I persuaded that he erred in the balancing exercise he referred to in each of his rulings. In particular, although superficially it may be thought that documents showing details of the number and amounts of withdrawals of money from the relevant fund by Rosenes or Paton in the two month period would be relatively innocuous, it may well be - and his Honour's rulings are consistent with this - that the name of an informer or the details of a police operation would be revealed by the production of the documents. Indeed, counsel for the Chief Commissioner demonstrated[116] before his Honour that the identity of a particular informer could not be protected by the deletion of the informer's name as the substance of the materials readily identified the informer. It is also to be remembered that the immunity extends to evidentiary material which, in the circumstances of the case, may lead to the identification of, for instance, a police informer: Rogers v. Home Secretary[117] and Attorney-General (N.S.W.) v. Stuart[118]. Further, even if his Honour is to be taken to have confined, wrongly, his opinion as to the sufficiency of the material already supplied to cross-examination as to credit, that error was immaterial, for counsel for Roberts established in cross-examination of Firth that there was a fund available (subject to approval) for drawing on for covert drug operations and in cross-examination of Rosenes that he did draw ("would have drawn") on it in 1999. Finally, his Honour did not, in the circumstances of this case, err in not inspecting the documents. A court has the power to inspect (that is, look at, examine and read) documents the subject of the claimed public interest immunity: Sankey v. Whitlam[119]; Alister v. The Queen[120]; and The Commonwealth v. Northern Land Council[121]. Such an inspection is private and does not constitute formal production to the court: Attorney-General (N.S.W.) v. Stuart[122]. But the power of inspection of documents for which public interest immunity is claimed should be exercised sparingly: Young v. Quin[123]. Indeed, it has been said that a court should not exercise the power of inspection "unless it [has first decided that] ... the documents probably ought to be produced": Young v. Quin[124]; Sankey v. Whitlam[125]; and Alister v. The Queen[126]. There was nothing in the circumstances before his Honour which necessitated his undertaking of the task of inspection of the documents for himself. In any event, it was submitted for the respondent (correctly, so far as I can see) and not challenged for Roberts, that no request had been made by counsel to the judge to inspect the documents for himself. In those circumstances, it is inappropriate that this Court should now entertain such a complaint.

[20]

I turn to the criticism of the conduct of the prosecutor. It may be that, in reliance on the Summaries of Evidence and the decision of the Victorian Director of Public Prosecutions not to call Rosenes or Paton in any trial in Victoria, the prosecutor did consider that they were not reliable or credible witnesses, though he made it clear to the judge that he could not concede that they were corrupt. But it may very well be that the prosecutor formed the view (as he was, in my opinion, as will appear, fully entitled to do) that on the specific topic on which he called them Rosenes and Paton were credible and reliable. Be that as it may, the serious imputations in the written outline as set out with slight editing in sub-paragraphs (b) and (c) of paragraph [108] above, which regrettably were maintained in oral argument after receipt of the respondent's outline pointing out that they were wrong, cannot be accepted. To begin with, it is to be noted that the prosecutor made it clear more than once during discussions before the jury was empanelled that he would keep the question of calling Rosenes and Paton and in particular making them available for cross-examination under review. The fact is that the prosecutor announced his decision to call Rosenes and Paton well before his Honour first suggested that Rosenes and Paton might object to answer questions arising out of the Summaries and that the objections might be upheld, and even longer before he gave his tentative ruling to that effect and then, after further discussion, took the objections on voir dire, upheld them and told Rosenes and Paton that they would not be asked any questions arising out of the Summaries, that ruling and other conduct of his Honour being what the submission takes to have made it clear that no effective challenge to credit could be mounted. Nor was the decision to call them for the purpose of a technical or forensic advantage but rather, as it seems to me, to contradict Roberts' foreshadowed evidence and to forestall any comment arising from their absence from the witness box. I am quite unpersuaded that it was designed to take advantage of an expected situation where they would appear as witnesses of integrity.

[21]

Finally, as I understand the submissions for Roberts, it is contended that his Honour's refusal of a stay and the prosecutor's calling of Rosenes and Paton each, and perhaps in combination, resulted in the trial being unfair and thereby gave rise to a miscarriage of justice. The premiss of that contention must be his Honour's ruling precluding cross-examination about and independent evidence of matters in the Summaries of Evidence. If, however, as I have held, his Honour's ruling was correct under the rules of evidence (including substantive immunities) it could not of itself give rise to an unfair trial or a miscarriage of justice. Further, the grounds on which the stay that was refused were sought on behalf of Roberts and, if material, on behalf of Urbanec were removed by changes in the stance of the prosecutor. So far as conduct by the prosecutor is concerned, the calling of Rosenes and Paton was what he had been urged to do. Moreover, no complaint was made at the time of his decision to do so. In particular, discharge of the jury, which was the appropriate remedy if the circumstances called for a remedy, was not sought. If it were to be said (though it was not said for Roberts) that the prosecution obtained a tactical advantage by being able to lead evidence in chief from Rosenes denying the defence case and that the prosecutor should merely have made Rosenes available for cross-examination, two sufficient answers can be made. First, even if that was the correct course, the failure to follow it was immaterial because counsel for Roberts would have been bound to put his client's case in cross-examination and, as can be seen from the answers given in the cross-examination which did occur, Rosenes would have denied all aspects of that case. Secondly, no objection to the leading of evidence in chief from Rosenes (or Paton) was made before this occurred notwithstanding that the prosecutor had indicated precisely what evidence would be led in chief. In summary, what occurred was aptly described by Buchanan, J.A. during argument as just part of the forensic fall of the cards. The riposte by Urbanec's counsel that part of the pack had, however, been removed, whilst elegant, was not, I think, accurate. Rather, to continue the metaphor, an attempt to add a joker to the pack had been refused. There was no miscarriage.

[32]

It should be stated immediately that, had Rosenes and Paton been convicted by the time they gave evidence, as witnesses they could have been asked whether they had been convicted and, if they denied that or refused to answer, the cross-examining party could have proved the conviction. This follows from s.33 of the Evidence Act 1958, which applied by virtue of either s.68(1) or s.79 of the Judiciary Act. His Honour[144] accepted that this would have been so but indicated that the trial could not await the resolution of the charges against Rosenes and Paton. The prosecutor[145] agreed that the convictions could have been put to the witnesses, though he doubted whether the convictions could be proved if denied. That overlooks the second part of s.33. Prior convictions are at common law and in Victoria by statute exceptions to the rule or standard of finality, as pointed out by McHugh, J. in Goldsmith v. Sandilands[146]. In Bugg v. Day[147] Dixon, J. considered that the better view was that at common law a conviction could not be used for the purpose of discrediting a witness if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is, in his character or trustworthiness as a witness of truth. The substantive terms of s.33 are not qualified in that way, but the section does begin "Except as hereinafter provided ..." and that seems to be a reference to s.37, which deals with cross-examination as to credit and is likewise applied by the Judiciary Act. Although in the original submissions for the respondent in opposition to Urbanec's application for leave to appeal the contrary was submitted, I should have thought that, having regard to the occupation and rank of Rosenes (and Paton) and the nature and extent of their offending, questions of them as to their convictions should not have been held improper under paragraph (b) of s.37 on the ground that the imputation they conveyed related to matters of such a character that the truth of the imputation would not have affected or would have affected in a slight degree only the jury's opinion as to their credibility on the matters to which they testified. I therefore conclude that, if necessary, the convictions, had they by then been sustained, could have been proved at trial, if necessary.

[38]

Special reference should here be made to the submissions on behalf of Urbanec. The contention appears to be that the fresh evidence adds strength to the submission made under ground 4 that a miscarriage of justice arose out of his Honour's rulings when coupled with the conduct of the prosecutor in calling Rosenes and Paton in the circumstances in which it is said he did and in his submission in response to the application made at the conclusion of the cross-examination of Rosenes. It is important to realise that, subject to possible cross-examination of Strawhorn as already discussed, the fresh evidence can only be used as going to the credit of the respective witnesses who were convicted. Further, I do not accept the submission that the prosecutor was disingenuous in presenting Rosenes and Paton as witnesses of integrity on the topic on which he called them. It does not necessarily follow from their subsequent discreditable and even dishonest conduct that they were dishonest at the earlier time, or that their evidence about the earlier time would be dishonest. This is particularly so where, as I shall later show and as the prosecutor knew, other material overwhelmingly supported the evidence he was calling them to give. As stated under Roberts' grounds 6 and 7 the prosecutor was fully entitled to form the view that Rosenes and Paton were credible and reliable witnesses on the topic on which he called them. The case of Grey v. R.[153] is quite distinguishable. True it is that Gleeson, C.J. and Gummow and Callinan, JJ. spoke of a "disingenuous basis on which to present" a key witness,[154] but that case dealt with non-disclosure, albeit inadvertent, by the prosecution of critical information about the witness. A miscarriage was held to have occurred by reason of the non-disclosure. Here, there was no relevant non-disclosure relating to Rosenes or Paton, and the prosecutor did what he was urged to do and announced that he would do so before the judge had given his rulings which had the effect of insulating the witnesses from their then alleged criminal activities. Further, I do not accept that the prosecutor's submission to the effect that Rosenes had not staked his reputation so much as asserted that he was telling the truth did not tally with the evidence or was misleading.[155] The submission overlooks the last three words in the statement of the witness, "I find it repugnant that you are questioning my integrity on this issue". The only statement that in my view could support the submission is Rosenes' statement that he had never accosted anyone in his police career. That might invoke his reputation, but it is not his reputation for honesty or integrity but rather for proper police behaviour or non-belligerence. The reference to being a wage earner is simply, in my view, concerned with a matter of fact. It is significant that the judge, who had the benefit of hearing the witness, agreed with the submission of the prosecutor which Urbanec's counsel has described as not tallying with the evidence and being misleading. For these reasons, I consider that the invitation to criticise the prosecutor should be discountenanced entirely. Moreover, a perceived need to criticise counsel, even if made out, could not be a reason for a re-trial. A miscarriage is required. If my conclusions on the challenges to his Honour's rulings are correct, the trial was conducted in accordance with the rules of evidence (including substantive immunities) and consequently there was no miscarriage**.**

[40]

(a) First, Roberts confessed on three separate occasions to the commission of the crime of importation of the cocaine, namely:

(i) in a conversation at Port Phillip Prison on 15 November 1999 with Firth, Rosenes and Hurley, Firth's notes of which counsel for Roberts had Firth read into evidence;

(ii) in the recorded interview conducted by Hurley and Firth (but not, in the principal and relevant part, Rosenes) on 16 November 1999 at Port Phillip Prison; and

(iii) in the 17-page statement dated 18 November 1999, taken on 16, 17 and 18 November 1999 by Firth (and also Rosenes on 16 November) at Port Phillip Prison and signed and "read back" (whilst being recorded on video tape) by Roberts.

(b) Secondly, evidence was led in the trial which was either contrary to or inconsistent with the evidence of Roberts that cocaine had not been obtained by him in Benin and had not been subsequently imported into Australia by him but had been, instead, provided to him by an unidentified male at the El Toro Motel on the morning of 11 September 1999, that contrary or inconsistent evidence being independent of Rosenes and consisting of at least the following:

(i) that Brand, while in the hotel in Benin, had seen one of the wooden plaques, which she said had some sort of detail on it looking like a map or postcard of Benin (her evidence as to this being impressive);

(ii) that Brand, while overseas and subsequently to seeing one of the wooden plaques, carried items of luggage which were consistent with their containing the plaques;

(iii) that the origin of the wood from which the eight wooden plaques (seven of which were intact or unopened at the time of the arrest of Roberts) were made was tropical Africa, three of the plaques bearing (under varnish) postcards depicting scenes from Cotonou, and that the cocaine was most likely of South American origin and very highly unlikely to have been manufactured synthetically in Australia;

(iv) telephone conversations recorded in telephone intercepts as follows:

CALL NO. DATE DESCRIPTION[157]

95 30 August 1999 Mohr telephones Cornelius and says that her husband is arriving that day and wants the same present.

99 30 August 1999 Mohr tells Roberts that she has done it all and he is to telephone Cornelius and all is prepared and that at 9 a.m. the next day he can pick up "all [his] presents".

519 4 September 1999 In response to a question from Mohr, Cornelius says that it is finished and Roberts has the "presents". He asks her to send money. She indicates it will be via Western Union. He gives her details of Roberts' changed return flights.

624 7 September 1999 Urbanec tells Roberts that he has sent the money and tells him to bring back a few figurines and to "make sure they are varnished, because otherwise they make trouble ...".

649 8 September 1999 Roberts tells Mohr, "They sewed that stuff together with a hot needle ... The varnish isn't, isn't properly dry".

655 9 September 1999 Cornelius tells Mohr that "eight presents" are being given.

23 10 September 1999 Roberts tells Mohr, "The eagle landed".

24 10 September 1999 Roberts tells Fraser, "The eagle has landed".

(v) Conversations recorded by listening devices, as follows:

16 August 1999 In Fraser's Office

Roberts tells Fraser he will come back and deliver "about 6 kilos minimum". Roberts and Fraser discuss what to do after "get[ting] through Customs". Roberts and Fraser discuss Roberts giving [Brand] $8,000.

11 September 1999 At Flat 4/6-8 Greig Court

Roberts tells Mohr, "It is 5.55." Mohr tells Roberts that she telephoned Cornelius and he told her that eight presents had been given by him to her husband.

(c) Thirdly, several other matters the subject of evidence were inconsistent with the defence relied on, namely:

(i) Roberts had (as he admitted in his evidence before the jury) previously given sworn evidence on a voir dire on 28 August 2001, in response to a question asked by his own counsel, that he did not, on 3 November 1999 at Port Phillip Prison, recognise Rosenes, whereas in his evidence before the jury he said that he had had eight to twelve meetings with Rosenes in order to arrange the incrimination of Fraser;

(ii) upon his arrival at Brand's residence on the afternoon of 11 September 1999 Roberts (as he said in his evidence) opened one of the eight wooden plaques, extracted a small portion of the cocaine contained in it, took the cocaine to Brand's flat and used at least some of it, although this cocaine, on the defence case, was not his to consume.

(d) Fourthly, if the sworn evidence given by Roberts was true, it necessarily meant that

(i) he had been prepared to engage in a course of conduct which put a number of innocent persons (including his wife Mohr and his friend Urbanec) at risk of being prosecuted for a serious drug offence;

(ii) he had made three detailed statements to the police falsely implicating his wife and his friend Urbanec in the commission of serious offences;

(iii) the person Roberts had sought to implicate falsely in the importation of cocaine (namely, Fraser) was the very solicitor he called for after he had been arrested and been afforded an opportunity to obtain legal advice; and

each of those matters defied belief.

(e) Finally, the very gist of the defence (that Rosenes was eager through Roberts to implicate Fraser falsely in the commission of a serious drug offence) was implausible and inherently incredible, for:

(i) it was particularly risky to engage Roberts, a person who was then unknown to Rosenes;

(ii) it was most unlikely that an intelligent and mature person could be improperly persuaded to engage in a course of conduct as expensive and sophisticated as that engaged in by Roberts in order to avoid being charged with an offence of possession in mid-June 1999 of a very small amount of cocaine;

(iii) it was most unlikely that Rosenes would provide $20,000 to Roberts in order to finance the overseas trip (and particularly so when, at a much lower cost, Roberts could be sent, for example, interstate);

(iv) it would have been much simpler for Rosenes simply to "plant" some drugs in Fraser's premises than to engage Roberts; and

(v) it was unnecessary for such a very large and very valuable quantity of cocaine to be provided to Roberts in circumstances where it was highly unlikely that Rosenes would be able to get it back.[158]