Abbas v The Queen

[2007] HCATrans 486

[2007] HCATrans 486

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S201 of 2007

B e t w e e n -

DANNY ABBAS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 AUGUST 2007, AT 2.26 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant.  (instructed by Kings Lawyers)

MR D.C. FREARSON, SC:   May it please the Court, I appear for the respondent.  (instructed by Office of the Director of Public Prosecutions)

GLEESON CJ:   Mr Game, it would probably be convenient for you to state your point fairly concisely and then we will hear what Mr Frearson has to say in this matter.

MR GAME:   My point fairly concisely is that one can see from recent authority of this Court, including Taufahema and AJS which is that if the ground of appeal is the first leg of section 6 of the Criminal Appeal Act, that the verdict cannot be supported having regard to the evidence, that is, it is based on deficiencies in the evidence, then the only appropriate order is for an acquittal.

GLEESON CJ:   Is there some suggestion that the order for the new trial was to enable the Crown to call expert evidence about the CCTV cameras or something?

MR GAME:   Yes, your Honour, that is the implication.

GLEESON CJ:   That seems to be ordering a new trial for the express purpose of allowing the Crown to supplement its evidence.

MR GAME:   Yes, absolutely, and not only that, the court clearly enough pored over these tapes.  I mean, they must have looked at them many times to write a judgment of this particularity.  They explain in detail all the camera angles and what you can infer and you see Mr Abbas walking up the stairs.  He is not holding his head and there is obviously no blood coming from it.

GLEESON CJ:   Is that the case that at trial no expert was called to say it is consistent with this man having blood on his face that you see that picture on the CCT camera?

MR GAME:   That is correct.  I think they want to try and find some evidence that will enable them to say that.  But the Court of Criminal Appeal had the tapes.  They were asked by both sides, because there was no supplementing of the record, to draw inferences from them.  The Chief Justice made findings that he could form a clear view about certain of the camera angles, particularly those coming back up the stairs.  As I say, the court examined this in great detail and came to the conclusion that the verdict could not be supported having regard to the evidence.

GLEESON CJ:   Just one other matter.  I get an impression from your opponent’s submissions, although I do not see it spelt out, that they would be seeking special leave to cross-appeal on the basis that what the Court of Criminal Appeal should have done consistently with their reasons was to dismiss the appeal.

MR GAME:   Your Honour, there is a case that says that in order for them to be able to do that, they would have to show that their application raised a question of general importance, that is to say, they would have to pass through special leave, (b) they have not foreshadowed this and (c) ‑ ‑ ‑

HEYDON J:   They do not have to.  They can wait until you get special leave.

MR GAME:   No, I understand that.  They can put on a cross-appeal ‑ ‑ ‑

HEYDON J:   They will need special leave for that.

MR GAME:   They need to get leave on the hearing.

HEYDON J:   Yes.

MR GAME:   My point is that a great deal of time has passed.  If they intended to make that application, they should have done it in a timely manner after – I see your Honour shaking your head, but if one looks at it from the perspective of Mr Abbas, he has brought this application ‑ ‑ ‑

HEYDON J:   I am looking at it from the perspective of the ordinary practice of the Court.

MR GAME:   I understand that, your Honour.  This application has not been foreshadowed.  At the moment it is a matter of speculation but, were it made, then obviously we would ‑ ‑ ‑

GLEESON CJ:   Let us see what Mr Frearson has to say.

MR FREARSON:   Perhaps I will be reasonably succinct.  The Court of Criminal Appeal purported to hold that the verdict was unreasonable.  They focused on a single issue, namely, the absence of a clear video record of blood or injury on the face of the appellant, application book 158.  On the other hand the CCA acknowledged a strong circumstantial case comprising identification and resemblance evidence, the appellant’s timely entry into the kitchen area preceding the shooting and his departure from that area immediately following the shooting, the description of the gunman, the description of the gunman having blood on his face and the appellant’s very implausible explanation for an injury to the face.  He said he was hit by an unidentified flying object as he exited the premises.  That was the effect of the evidence.

The Court of Criminal Appeal was prepared to give the appellant the benefit of the doubt in the absence of evidence that cameras may not pick up, as opposed to could not, blood, application book 158, the Court of Criminal Appeal judgment at paragraph 99.  Nevertheless, quite inconsistently, the Court of Criminal Appeal ordered a retrial because of the strength of the balance of the case.

GLEESON CJ:   If they had a reasonable doubt on the evidence existing, the only point in ordering a new trial would be to enable the Crown to call more evidence, would it not?

MR FREARSON:   Your Honour, I do not suggest for a moment that there is no tension in the reasoning of the Court of Criminal Appeal.  What I am endeavouring to point out is that there is a strong tension and what they said was, in effect, irreconcilable.  On the one hand the Chief Justice is saying “I have a reasonable doubt”, on the other hand ‑ ‑ ‑

HEYDON J:   You are running a point of construction.  You are saying that, read as a whole, they found the ground of appeal was not made out.

MR FREARSON:   Yes, your Honour.

HEYDON J:   Therefore the appeal should have been dismissed.

MR FREARSON:   Yes, your Honour.

HEYDON J:   You need a notice of cross-appeal, do you not, to say ‑ ‑ ‑

MR FREARSON:   A notice of contention ‑ ‑ ‑

HEYDON J:   No, not contention, because you want a different order.

MR FREARSON:   Yes, your Honour.

HEYDON J:   You would need to get special leave to appeal.  If Mr Game gets special leave, you would argue for special leave to cross-appeal on that day.

MR FREARSON:   Yes, your Honour.

GLEESON CJ:   You do not seem to be resisting the application for special leave to appeal, as far as I can see.

MR FREARSON:   Your Honour, I am resisting the ‑ ‑ ‑

GLEESON CJ:   I am not suggesting you should resist it.  There does seem to be a problem, does there not?

MR FREARSON:   There is a problem in reconciling what the Court of Criminal Appeal did.  I accept the proposition that if a verdict is found to be unreasonable, you cannot relitigate that verdict because (a) apart from any other reason I suppose the rationale would be ‑ ‑ ‑

HEYDON J:   It is contrary to all principle to order a new trial in order to give the Crown an opportunity to call further and better evidence.

MR FREARSON:   That is right, but when one looks at what they actually did, evidence that the camera may not pick up, it really adds nothing to the Crown case.  The cameras did not pick up blood on anybody.  They would have picked up blood on somebody had they had the capacity to pick up blood.  The jury had no problem with this.

HEYDON J:   That is an argument that there should not have been a reasonable doubt experienced.

MR FREARSON:   That is right, your Honour.  I think that, when one looks at the totality of what the Court of Criminal Appeal did, they said that the ground was not made out.  That is the totality of it but yet there was a nagging doubt that the Chief Justice had that the others shared and they were prepared to – it is almost like a merciful success on the ground of appeal.  I do not say that in any legal sense but that is almost what happened.  It is just impossible to reconcile what it is that the Crown is supposed to rectify.  It is so insignificant that it really goes nowhere.  The Crown was content with the order for the retrial.  The Crown did not want to come up and bother the High Court with it.  We were content to have the retrial and that is what they ordered.  So we do resist the application for special leave.

GLEESON CJ:   Are you seeking special leave to cross-appeal?

MR FREARSON:   Yes, your Honour.  There was no statement by the Court of Criminal Appeal in the traditional way that it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt.  His Honour the Chief Justice said he was not satisfied beyond reasonable doubt, but he did not actually formulate the question in terms of R v M in my submission.

GLEESON CJ:   Yes, Mr Game.

MR GAME:   If my opponent wishes to make a cross-appeal if we get special leave, then that is a matter that should be dealt with on the hearing of the appeal, I would have thought, but if it is being made now and formalities are dispensed with, then obviously we would be opposing the grant of special leave to our opponents.  It is fairly clear that the court, shall I say, appropriately directed their mind to whether or not the evidence raised a reasonable doubt.  They directed themselves appropriately to the test in M v The Queen.  They made their own assessment of the evidence.  They made on a number of occasions.  For example, if we look at page 150 we see matters set to raise ‑ ‑ ‑

GLEESON CJ:   I think you are pushing at an open door here, Mr Game.

In this matter there will be a grant of special leave to appeal.  The respondent has made it plain that it will seek special leave to cross-appeal and that application for special leave is a matter that can be dealt with by the court that hears the appeal in the light of the argument and a full understanding of the evidence.

AT 2.37 PM THE MATTER WAS CONCLUDED