Wakeley & Bartling v R [1990] HCA 23; (1990) 93 ALR 79; (1990) 64 ALJR 321 (7 June 1990)

HIGH COURT OF AUSTRALIA

STUART REGINALD WAKELEY and ANTHONY DAVID KEITH BARTLING v. THE QUEEN

F.C. 90/024

High Court of Australia

Mason C.J.(1), Brennan(1), Deane(1), Toohey(1) and McHugh(1) JJ.

CATCHWORDS

HEARING

Canberra

7:6:1990

DECISION

MASON C.J., BRENNAN, DEANE, TOOHEY AND McHUGH JJ. The applicants seek special leave to appeal against their conviction on various counts relating to trafficking in and possession of heroin. Each applicant was convicted of carrying on the business of unlawfully trafficking in a dangerous drug (heroin) and unlawful possession of a dangerous drug (heroin) in excess of 2 grams but less than 200 grams. Wakeley was acquitted of possessing a dangerous drug (heroin); Bartling was convicted of that offence. Wakeley was also convicted of possessing money obtained from a drug-related offence. Bartling was also convicted of possessing property, being money and jewellery, obtained from the commission of a drug-related offence. Each applicant was sentenced to various periods of imprisonment. For the offence of trafficking, the sentence was mandatory, namely, life imprisonment.

2. Each applicant complains of the trial judge's refusal to allow cross-examination "into the causes of the death of Detective Horton". While that is the basis on which each application was presented and therefore must be dealt with, there is underlying the argument another and perhaps more fundamental proposition, namely, whether the Crown should have led evidence into Horton's cause of death.

3. To no small extent, the problems which have emerged have been caused by the fact that the trial judge's ruling, that cross-examination about the cause of Detective Horton's death would be excluded, was premature. That ruling was effectively made in discussion which took place between his Honour and counsel at the conclusion of a voir dire to determine the admissibility of a confessional statement made by the applicant Bartling and prior to the opening address of the Crown prosecutor. The voir dire had itself followed an unsuccessful application by counsel for Bartling that his client be tried separately from Wakeley. As part of the voir dire the Crown called Detective Senior Constable Bunton who was present at the Broadbeach police station on 2 February 1988 when Detective Sergeant Horton interviewed Bartling. Horton had died the morning following this interview. During examination-in-chief, Bunton was asked by the Crown prosecutor, "Detective Horton is dead; is that so?", to which she answered, "Yes". The question was asked, no doubt, so that Bunton might refer to notes made at the interview by Horton and signed by Bunton and by Bartling. In the course of cross-examination of Bunton by Bartling's counsel, this exchange took place:

"I take it you're aware as to Mr Horton dying from what

appears to be an overdose of drugs? -- I believe it was a

contributing factor to his death.

Do you know the type of drugs that were involved? -- I

was told it was a combination of THC, cocaine and heroin.

THC, that's cannabis isn't it? -- Yes."

4. It will be necessary to say more of the circumstances surrounding Horton's death, though some of what is now known only became known to the applicants' advisers through the inquest into Horton's death, which took place after the applicants' appeals to the Queensland Court of Criminal Appeal had been dismissed. These facts were assumed by counsel to be fresh evidence and therefore not receivable by this Court: see Mickelberg v. The Queen [1989] HCA 35; (1989) 167 CLR 259. However, a question does arise, which it is not necessary to answer for the purposes of these applications, whether evidence which was excluded by reason of the trial judge's ruling is in truth fresh evidence.

5. During the voir dire, counsel for Bartling, Mr Hardcastle, did not pursue with Detective Bunton the cause of Horton's death. That is perhaps understandable since any answers would have been outside the scope of Bunton's direct knowledge, though the same cannot be said of circumstances surrounding his death. Bartling gave evidence on the voir dire and was cross-examined. The trial judge said that he preferred Bunton's evidence to Bartling's and ruled that statements made by Bartling to the police were made voluntarily and were admissible.

6. His Honour said that the hearing would be adjourned until the following morning. Before the adjournment took place the Crown prosecutor foreshadowed the possibility of calling the pathologist who conducted the post-mortem examination on Horton. The following dialogue ensued:

"HIS HONOUR: If he can give relevant evidence.

MR FEENEY : If he can give relevant evidence.

HIS HONOUR: The evidence may be that Detective Horton is

dead and that he died after these events. Unless medical

evidence will be given, it will go no further than that.

If medical evidence were to be given as to the cause of his

death, I don't know where that would take us."

Mr Feeney said that he had raised the matter at that stage because:

"On one view I can see that it may be an important matter to

the defence and one that should properly be considered

by the jury. I think perhaps at this stage it is a little

difficult to say, but I would prefer to be in a position of

opening it rather than it arising in the course of the trial."

His Honour invited counsel for the applicants to respond, saying that, while the fact of Horton's death was relevant to explain his absence as a witness, the cause of his death appeared to his Honour to be irrelevant. The trial was then adjourned overnight.

7. The following morning Miss Dick, counsel for Wakeley, said that she did not wish to make any submission at that stage but, equally, did not wish to commit herself in relation to the conduct of the defence case "during the course of the trial". His Honour then said that, after hearing if Mr Hardcastle had anything to say, he proposed to put the matter beyond doubt by giving a ruling. He added: "Because the time to rule as to the relevance of evidence is before the Crown Prosecutor opens". The debate had of course moved to the conduct of the trial generally, the voir dire having been concluded the previous day. And his Honour was then speaking generally, not confining his remarks to cross-examination. In view of the foreshadowed ruling, counsel for Wakeley decided to make submissions at that stage, a course which clearly she would have preferred to take later in the trial.

8. There followed a lengthy exchange between counsel for Wakeley and the trial judge, with a contribution from the Crown prosecutor. At the end of it, his Honour said: "I am prepared to rule and I do so that evidence as to the cause of Sergeant Horton's death is inadmissible in these proceedings". Clearly that was a ruling as to both evidence-in-chief and cross-examination. During the exchange Miss Dick pointed out that the case against Wakeley was along the following lines: the Crown alleged that, pursuant to a search warrant, detectives searched a house at Tallai Road, Mudgeeraba, in which both applicants resided and that, on a third search of what was said to be Wakeley's bedroom, one of the police officers found a bag of white powder in a shoe, that this powder was analyzed and was found to be heroin. Also found in that room were a quantity of cash and two syringes. The depositions further suggested that Bunton, who took part in the search, had earlier searched Wakeley's room and the shoe (though Bunton later said that she had been referring to a search of shoes in another room) and found nothing. Miss Dick said that, as part of Wakeley's trial, "it may be that I will have to lead to the jury that either that heroin was Bartling's or it had been planted by the police officers".

9. The connection between an accusation that the police had planted the heroin in the shoe and the cause of Horton's death may not be immediately apparent. This was the view taken by his Honour. While making it clear to counsel for Wakeley that she could pursue cross-examination directed at showing that the detectives had planted the heroin in Wakeley's shoe, his Honour made it equally clear that, in his view, the fact that Horton's death may have resulted from an ingestion of drugs, including heroin, had no relevance to any suggestion of planting and could not be pursued. But, as counsel for Wakeley explained to his Honour, any suggestion that the heroin in the shoe had been planted by the detectives would inevitably have been met by a question in the minds of the jury - "How could police officers obtain heroin to plant it?". Evidence as to the cause of Horton's death, she submitted, would make it clear that one of the police officers had access to heroin at or about the time of the search. Indeed, counsel might have gone further and argued that the Crown should have led evidence from the pathologist who performed the post-mortem on Horton. Cross-examination of the detectives as to the cause of Horton's death would have produced largely hearsay and speculative answers. The trial proceeded and, in the light of his Honour's ruling, no evidence was led by the Crown as to the cause of Horton's death and no questions were asked in cross-examination on that topic. As has been indicated at the outset of these reasons, Bartling was convicted on all charges, and Wakeley was convicted on all but one.

10. So far as is relevant to these applications, the Court of Criminal Appeal dismissed the applicants' appeals by majority (McPherson and Williams JJ., Dowsett J. dissenting). The majority did so essentially on the basis that the presence of drugs in Horton's body at the time of his death was not probative of any issue which the jury was called upon to determine. To assess the correctness of that view, it is necessary to say something more of the facts as they emerged at the trial. On 2 February 1988 four detectives (Horton, who was in charge, McDonnell, Bunton and another officer, Gray), at the time all members of the drug squad of the Queensland C.I.B., travelled to the Gold Coast for a period of four days and booked into a motel. Later that day they went to a workshop at Mermaid Beach, where they executed a search warrant and found a briefcase containing money, jewellery, a small quantity of heroin, scales and a teaspoon. Other money, $930, was found in a microphone case in that briefcase. Bartling and his de facto wife, who were present when the warrant was executed, accompanied the police to the Broadbeach police station. Although they were not then placed in custody, they were told by Horton that they would have to remain at the police station while the detectives executed a search warrant at the house in Tallai Road where Bartling and Wakeley resided. The detectives then left to execute that warrant. Wakeley was present when the detectives arrived at about 2.15 p.m. and was shown a search warrant.

11. The detectives carried out a search of the premises for about one hour. In evidence, Detective Gray said that he found a plastic bag containing heroin in the toe of a shoe in Wakeley's room, on the third occasion he searched. This was mentioned earlier in these reasons. The police also found several syringes and $1,222 in cash. Wakeley was taken to the Broadbeach police station at about 3.30 p.m. According to a record of interview, which he refused to sign and which, at trial, he claimed had been fabricated, Wakeley admitted ownership of the heroin and of the syringes. Wakeley, it was also alleged, said that he had the heroin for his own use but that he sold small quantities to Bartling who in turn resold it. The interview with Bartling, which resulted in the signed record held by his Honour to be voluntary, contained an admission that Bartling bought small quantities of heroin from Wakeley, some of which he (Bartling) resold and some of which he used himself. That admission was evidence against Bartling but not against Wakeley.

12. Both Wakeley and Bartling were charged later that day. According to Detective McDonnell, he placed the packet of heroin, found at Tallai Road, in his briefcase. On the morning of 3 February, the body of Horton was found in the unit occupied by the four detectives. So too was a briefcase. The identification of particular briefcases and their contents is by no means clear. McDonnell said in evidence that he retained the packet of heroin in his possession until he delivered it to the Government Medical Laboratory. He did not say whether the packet of heroin remained in his briefcase until that time. Before us, counsel for Wakeley said that there was evidence at trial that all the material seized at Tallai Road was placed in a briefcase "which, I think, belonged to Horton but was in the possession of one McDonnell ... It was in the unit which was occupied by the four of the police officers." But the evidence at the trial suggests that the briefcase found in the unit on the morning of 3 February was Horton's briefcase, that it was not the one in the possession of McDonnell and that it contained none of the material seized at Tallai Road, or at Mermaid Beach. Indeed, according to Horton's notes and Bunton's evidence, the money, jewellery and drugs seized at Mermaid Beach were found in Bartling's briefcase and were removed in the briefcase itself. These possible discrepancies may have proved significant in the trial of the applicants but they do not seem to have been pursued, although cross-examination in relation to the discrepancies was not shut out by the trial judge's ruling.

13. The pathologist's report, which of course was not in evidence, showed that Horton's body had "levels of alcohol and opiates sufficient to cause death. The opiates included the metabolised products of heroin ... the levels of opiates were consistent with them having been ingested by being sniffed up the nose some hours before death." It should also be noted that, during the exchange which led to the trial judge's ruling, the Crown prosecutor outlined the evidence the Crown would lead if permitted to do so. The evidence would be that Detective Sergeant Horton was alive at about 3 a.m. on 3 February. He had been out to dinner and was significantly affected by alcohol. By 8 a.m. "the next morning" (counsel must have intended to refer to the same morning), he was dead at the unit. Counsel also told the trial judge that the pathologist's report disclosed no evidence of prolonged use of opiates or other drugs. We were told by counsel for Wakeley that evidence given at the inquest into Horton's death, after the trial had concluded, showed that Bunton retired about 11 p.m. on 2 February, that Horton, McDonnell and Gray returned to the unit later that night, that McDonnell and Gray went out again and that they returned to the unit about 3 a.m. where they found Horton unconscious. What happened thereafter is shrouded in mystery but there is nothing to suggest that any medical assistance was summoned.

14. As mentioned earlier, the information derived from the inquest was assumed, during the hearing of the appeals to this Court, to be fresh evidence and the Court was not furnished with the evidence given at the inquest or with the Coroner's findings. But, had cross-examination been permitted, an area of inquiry would have been opened up and this information may well have been given at the trial. Equally, it is at least possible that McDonnell and Gray, if not Bunton, could have given direct evidence as to the ingestion of drugs by Horton since they were in his company for much of the time in the hours preceding his death. But, again as mentioned earlier, these questions do not have to be answered by this Court. However, the unsatisfactory state in which the evidence was left at trial is also highlighted by the accommodation arrangements of the four detectives. In answer to a question in cross-examination, Bunton agreed that "the police officers booked into some units". But this Court was told by counsel for Wakeley, without dissent from counsel for the respondent, that the detectives were in fact sharing a unit, a fact that did not emerge at the trial.

15. In the Court of Criminal Appeal, McPherson J. was of the view that the presence of heroin in Horton's body had no relevance to the question of the guilt of either applicant. At most, in his Honour's opinion, questions as to the presence of the heroin went to Horton's credit and, as such, could have been asked to this end had Horton been alive and a witness at trial. But, as Horton was not alive, such questions could not have been asked of other witnesses. Williams J. said, in the course of reasons for dismissing the applicants' appeals:

"If there was no evidence suggesting that the heroin was

planted in Wakeley's shoe then the fact that at the time of

his death there was heroin in Horton's body would not be

probative of any issue at the trial, and therefore that

fact would be irrelevant and inadmissible."

With respect, that observation tends to beg the very question to be decided.

16. Dowsett J., in dissent, considered evidence as to the presence of opiates in Horton's blood to be relevant "as going to show that Horton had access to heroin at a time near to Bartling's apprehension". His Honour accepted that there were other possible explanations for the presence of opiates, including a misappropriation by Horton of heroin found in the possession of Wakeley or Bartling. But these were matters for the jury. We agree with his Honour's view of the evidentiary material, though the reference to "access to heroin" tends to underplay the undoubted fact that Horton must have had, for a time at least, not merely access to, but physical possession of, heroin for his own purposes. Dowsett J. also considered the evidence to be relevant upon "a wider and more ill-defined basis", namely, that it tended to taint the investigation by casting doubts upon the reliability of Horton and those detectives who participated in the investigation with him. Again, said his Honour, there may have been an innocent explanation, but the jury were prevented from making this assessment for themselves because of the trial judge's ruling. In respect of this wider ground, we are of opinion that the presence in Horton's blood of other opiates may well have carried as much significance as the presence of heroin. It showed not only access to, but possession of, a range of opiates by Horton for his own purposes, making the carrying out of the investigation by the detectives even more open to question.

17. The argument of the applicants, as presented to the Court of Criminal Appeal and to this Court, was that cross-examination as to the cause of Horton's death was relevant to the issue whether the heroin found in Wakeley's shoe had been planted by one of the detectives. This argument assumes that planting was an issue at the trial. There is no doubt that Bunton, McDonnell and Gray were each cross-examined on their evidence of their search at the Tallai Road home. In the course of his judgment in the Court of Criminal Appeal, Williams J. came to the conclusion that "there was evidence which the jury were entitled to accept that, on about the third search of the bedroom occupied by Wakeley, a plastic bag containing heroin was found by Gray in a shoe". His Honour said that Bunton agreed in cross-examination that, when Gray said of the heroin, "I found this in some shoes", she had responded, "That's funny, I searched all the shoes ... I even banged the heel of them." But she added that her remark was "silly" because her searching had been in another room. McDonnell was cross-examined as to the finding of the heroin. Williams J.'s assessment was in these terms:

"The closest suggestion made to McDonnell by counsel for

Wakeley that the heroin was planted in the shoe was the

following:-

'I suggest that the room had been thoroughly searched in

my client's presence, including those black pointy-toed

shoes? --- No, that is incorrect.

And nothing had been found in them? --- That is

incorrect.' "

18. Williams J. went on to say that, although counsel for Wakeley had raised with the trial judge at the outset that she wished to cross-examine as to the presence of heroin in Horton's motel room and as to the whereabouts of "the briefcase", "neither of such matters was touched upon by her in the course of the trial". As mentioned earlier, the identification of "the briefcase" was left somewhat in the air at the trial. Indeed, Williams J. seems to have thought that the briefcase found in the unit was the one taken from Bartling at Mermaid Beach. His Honour continued:

"They were matters that the learned trial Judge had said

could possibly be made the subject of cross-examination

to support any suggestion of planting, yet no material

questions were asked. Further, it was not suggested (as

she had foreshadowed) that the heroin in the shoe was

either Bartling's or had been planted."

19. There is force in his Honour's comments but in a very real sense they point up the difficulty counsel were in. Although each application for special leave to appeal is framed in terms of refusal to permit cross-examination into the cause of Horton's death, in truth what counsel were seeking was cross-examination to establish the presence of opiates in Horton's blood. Now it is true that, armed with this evidence, counsel may not have been able to pursue very far or successfully an allegation that the heroin was planted in the shoe. But the trial judge's ruling withheld from them what may have proved to be a very effective foothold for cross-examination to this end.

20. The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness's assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a judge should allow counsel some leeway in cross-examination in order that counsel may perform the duty, where counsel's instructions warrant it, of testing the evidence given by an opposing witness. Lord Hanworth M.R., in words which commanded the approval of the House of Lords in Mechanical and General Inventions Co. and Lehwess v. Austin and the Austin Motor Co. (1935) AC 346, at p 359, said:

"Cross-examination is a powerful and valuable weapon for

the purpose of testing the veracity of a witness and the

accuracy and completeness of his story. It is entrusted to

the hands of counsel in the confidence that it will be used

with discretion; and with due regard to the assistance to

be rendered by it to the Court, not forgetting at the same

time the burden that is imposed upon the witness."

In Kalia (1974) 60 Cr App R 200 and in Maynard (1979) 69 Cr App R 309, while the Court of Criminal Appeal affirmed the duty of counsel not to extend cross-examination unduly nor to pursue irrelevant lines of inquiry, it emphasized that counsel must always be at liberty to do their duty in the proper interests of the client. It is the duty of counsel to ensure that the discretion to cross-examine is not misused. That duty is the more onerous because counsel's discretion cannot be fully supervised by the presiding judge. Of course, there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case. But until that stage is reached - and it is for the judge to ensure that the stage is not passed - the court is, to an extent, in the hands of cross-examining counsel.

21. The primary issue in this case, therefore, is whether it can be said that questions designed to show that Horton had died with heroin, or the metabolised products of heroin, in his blood were irrelevant to a fact in issue in the trial, namely, whether heroin had been found in Wakeley's shoe during the police raid on the day before Horton's death. It is not profitable to speculate on the possibility that some relevant connection might have been found between the fact that Horton had died after ingesting heroin and the alleged fact that heroin had been found in Wakeley's shoe during the police raid, but it is now clear that a connection might have been looked for by endeavouring to trace the source of the heroin which Horton had ingested and by seeking to discover whether any of the other police in the raid had participated in any relevant event which preceded Horton's death. It is easier to come to the conclusion that this was a legitimate line of inquiry in the light of information that has been discovered since the trial. However, looking back to the circumstances known at the trial, the subsequently discovered information merely emphasizes the necessity for a trial judge to abstain from too ready an intervention in cutting off lines of cross-examination. The curiosity of the circumstances surrounding the death of Horton was a sufficient indication that some connection might have been uncovered between those circumstances and the dispute about the finding of heroin in Wakeley's shoe. Even if cross-examination failed to establish any real connection between Horton's ingestion of heroin and the alleged finding of heroin in Wakeley's shoe, the opening up, by cross-examination, of the general conduct of the detectives on the evening before and the early morning of Horton's death may well have thrown some light on the reliability of the entire investigation. It was impossible to say, in advance of the cross-examination which counsel sought to conduct, that the logical connection between a fact which might have been elicited and the issue to be determined was "so slight that the fact is treated as too remote and evidence of it as inadmissible": The Queen v. Stephenson [1976] VicRp 34; (1976) VR 376, at p 380.

22. It was suggested by counsel for the respondent that the applicants might themselves have called the pathologist who performed the post-mortem examination or, at any rate, applied to the trial judge to do so. But this suggestion assumes the relevance of that evidence which had to be established, if at all, by cross-examination of the police witnesses. Moreover, the suggestion tends to overlook the duties of the prosecution relating to the presentation of relevant evidence and the calling of witnesses whose credibility is not in doubt: see generally The Queen v. Apostilides [1984] HCA 38; (1984) 154 CLR 563 and Archbold, Pleading, Evidence and Practice in Criminal Cases, 43rd ed (1988), vol 1, par.4-178. This is not to say that the Crown should have called the pathologist. In Richardson v. The Queen (1974) 131 CLR 116, at p 119, the Court referred to "the fundamental proposition that it is for (the Crown prosecutor) to determine what witnesses will be called for the prosecution". In the absence of any complaint by the applicants in this regard, it is unnecessary to say any more. While his Honour's ruling stood, the pathologist's evidence could not have been received. His Honour was not likely to have altered his ruling unless persuaded of the relevance of pathological evidence, and the relevance of that evidence was closely bound up with the line of cross-examination barred to the applicants. The difficulty with the procedure adopted by the trial judge lay in his ruling on the admissibility of the evidence before there was an opportunity to lay a foundation for its admission. In the circumstances, the situation was not one for which counsel for the defence can be held responsible.

23. The disposition of these applications, in the light of these reasons, is troublesome. Dowsett J. approached this aspect by looking first at the position of the applicant Bartling. His Honour pointed out that the case against Bartling comprised the evidence of Bunton, McDonnell and Gray. It has never been suggested that heroin had been planted on Bartling but it was put to Bunton that Horton had made threats to Bartling which resulted in his confessional statement. Bunton denied that any threats had been made. The planting of heroin in Wakeley's shoe could have no direct bearing on the resolution of this conflict. But Dowsett J. added:

"Once it is conceded that it would be appropriate for the

jury to assess the conduct of the raids on Bartling and

Wakeley and the subsequent record of interview, or more

particularly the evidence of the police officers concerning

these matters, in the light of Horton's subsequent

ingestion of heroin, it is not appropriate to limit the

extent to which they could draw inferences from that

evidence. It seems to me to be not at all far-fetched to

concede the possibility of an inference that the whole

investigation may have been tainted by the involvement of

its leader with the illicit use of heroin. This may have

been with or without the knowledge and concurrence of the

other members of the investigating team. It was for the

jury to determine whether that matter caused them to have a

reasonable doubt as to guilt."

We agree with these comments of Dowsett J. In particular, we do not think it is possible to be satisfied that no substantial miscarriage of justice resulted from the trial judge's ruling: see Wilde v. The Queen [1988] HCA 6; (1988) 164 CLR 365.

24. Dowsett J. was of the opinion that there was no basis upon which Wakeley's appeal should be determined differently from that of Bartling. Again, we agree. If anything, Wakeley's application for leave to appeal is arguably stronger than that of Bartling for there is, potentially at least, a more direct connection between the presence of opiates in Horton's blood and the evidence which led to Wakeley's conviction. That apart, it is not possible to make any significant distinction between the applicants or in terms of the offences of which they were convicted.

25. We would grant special leave to appeal in each case, allow the appeals, quash the convictions and order a new trial. To do this, it is necessary to extend the time for bringing each application, there being five months delay between the dismissal of the appeals to the Court of Criminal Appeal and the filing of applications for special leave to appeal to this Court. The delay was not satisfactorily explained in the affidavits filed in support of the applications but counsel for Wakeley identified the circumstances of the delay and, in those circumstances, an extension of time is appropriate in each case. At the same time, it is unsatisfactory that this Court must again remind applicants' legal advisers of their responsibility to place before the Court, in affidavit form, all the circumstances bearing upon an application for an extension of time. Extensions are not granted as a matter of course.

ORDER

Applications for extensions of time in which to apply for special leave to appeal granted.

Applications for special leave to appeal granted.

Appeals allowed.

Set aside the orders of the Court of Criminal Appeal and in lieu thereof order that the appeals against conviction to that Court be allowed, that the convictions be quashed and that there be a new trial.