Alexanderson v The Queen; MacQueen v The Queen

[2003] HCATrans 349

[2003] HCATrans 349

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B84 of 2001

B e t w e e n -

STEPHEN RAYMOND ALEXANDERSON

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B85 of 2001

B e t w e e n -

ALLAN DAVID MacQUEEN

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 SEPTEMBER 2003, AT 11.28 AM

Copyright in the High Court of Australia

__________________

MR W. SOFRONOFF, QC:   May it please the Court, I appear with my learned friend, MS K.S. COCHRANE, for the applicants.  (instructed by Bernard Bradley & Associates)

MR R.G. MARTIN:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

McHUGH J:     Yes, Mr Sofronoff.

MR SOFRONOFF:   Your Honours, the special leave point that we submit justifies the grant of leave is whether section 58 of the Constitution of Queensland Act or the inherent power of the Supreme Court of Queensland has the effect that in an appropriate case the Court of Appeal has the jurisdiction to entertain a second appeal against conviction.

As your Honours would be aware in Grierson v The King (1938) this Court held that the appellate jurisdiction is statutory and that on a true construction of the statute conferring the right of appeal there is only a right to a single appeal.  Grierson, it must be said, has been applied many times in ‑ ‑ ‑

McHUGH J:   It was confirmed by this Court in Postiglione.

MR SOFRONOFF:   It was, your Honour, in your Honour’s reasons for judgment.  However, the following things, in our submission, merit a re‑examination of the strictness of that principle.  In a number of cases, the stricture of that absolute proposition has been eroded.  In R v Allen in the Court of Appeal of Queensland the Court of Appeal vacated a perfected order dismissing an appeal basing itself upon the inherent jurisdiction.

McHUGH J:   They concerned a slip rule, did they not, those cases?  Allen concerned the slip rule?

MR SOFRONOFF:   No, your Honour.  The headnote refers to the slip rule, but what had happened was that Allen had appealed.  His appeal was lodged in August.  The High Court gave a decision called Robinson affecting the propriety of the summing up.  The Court of Appeal dismissed Allen’s appeal without reference to Robinson in November.  Allen had appeared for himself.  The order was then perfected.

The matter was then re‑agitated before the Court of Appeal, which reopened the proceeding on the footing that a miscarriage of justice would be inflicted upon Allen if the matter was not reopened.  So, the headnote, indeed, refers to the slip rule but it is more substantial than that, in our submission.  His Honour Justice Dowsett referred to the peculiar circumstances of that case where the court had dismissed the appeal without giving reasons.  The order was then perfected, before reasons were given, in a short timeframe.  The High Court’s decision was then brought to the court’s attention.

In R v Pettigrew the court also vacated a perfected order in circumstances where there had been an error in the understanding of the court of the sentence appealed from and when that error had been put before the court, the court concluded that the predecessor to section 58 of the Constitution Act was wide enough to permit reconsideration of an appeal where an appeal had been heard and determined and the order entered.

In South Australia, in R v Brain, a case on our list, a person who had been sentenced on a particular footing had applied for leave to appeal against sentence did not appear on three occasions.  On the third occasion the appeal was dismissed, not having been heard on its merits, and eight years later he re‑emerged and asked the court to vacate the earlier order.  The court did so, Chief Justice Doyle founding himself upon the inherent jurisdiction and upon a particular provision of the Supreme Court Rules as well.

In Pantorno (1968) 166 CLR 466 at 484, Justices Deane, Toohey and Gaudron expressly left open the question whether a Court of Appeal had jurisdiction to reconsider a matter, the case having been determined and the order perfected. So, your Honours, in summary we say this about the point: there has been a steady erosion at the margins of the strictures of the absolute principle as enunciated in Grierson.  The limits of any jurisdiction to vacate orders made and perfected by courts of appeal have not been examined or stated by this Court in the criminal sphere.

Errors which might be corrected by a Court of Appeal would be corrected by a Court of Appeal, if such a jurisdiction existed, might not be amenable to correction by this Court because of the limits upon the right of appeal to the High Court, so criminal litigants may find themselves upon the horns of a dilemma where there is no special leave point yet no jurisdiction to correct the matter, the order having been perfected.

HAYNE J:   The hypothesis for that asserted dilemma must be, must it not, that there was a miscarriage of justice in the disposition of the first appeal?

MR SOFRONOFF:   Yes.

HAYNE J:   It would seem unlikely, therefore, that the dilemma which you posit can arise if there truly is a miscarriage of justice.

MR SOFRONOFF:   Your Honour, of course the High Court might grant leave on the broader principle that the administration of justice requires sometimes, of course, as in Allen’s Case where a later decision changed the law relating to summing up, for example, such that the Court of Appeal in that case felt moved to reopen the matter, the High Court might well regard that as not a sufficient reason to grant special leave to an applicant, particularly if the application is made a long time after the original appeal.

In our submission, cases like Pettigrew in which there was a mistake about the construction of the sentencing order and cases like Allen would not necessarily have warranted special leave and yet in each of those cases the Court of Appeal was sufficiently moved by the circumstances to reopen the matter and make a different order.

HAYNE J:   Does this capacity depend, ultimately, upon an assertion of inherent jurisdiction?

MR SOFRONOFF:   No, your Honour, it depends upon one of two things, or possibly both.  The first is the inherent jurisdiction and the second is with the aid of the Queensland Act which has an identical analogue ‑ ‑ ‑

McHUGH J:   But how could there be inherent jurisdiction?  Appeal was not a remedy known to the common law.  It has been said again and again.  It is purely the creation of statute.

MR SOFRONOFF:   Your Honour, in two of the cases that I have cited, Brain and Allen, the Court of Appeal of Queensland and the court in South Australia each founded their jurisdiction upon the inherent jurisdiction to ‑ ‑ ‑

HAYNE J:   Just so.  There is the difficulty.

MR SOFRONOFF:   Your Honour, that, itself, is as question.  The question that your Honour Justice McHugh put to me is itself a question worthy of consideration, in our submission, whether the inherent jurisdiction to maintain the propriety of the court’s process extends as far as vacating an order that was – assume for the purposes of argument – wrongly made.  In this case, the applicants had been convicted of murder.  An appeal was heard and determined upon a number of grounds which did not include the ground that manslaughter had not been put to the jury in their case.

In 2000 this Court decided R v Gilbert and had already decided Barlow’s Case, who was a co‑accused of the applicants.  The case here was put, as far as the applicants were concerned, on the footing that it was murder or nothing.

HAYNE J:   Was the case at trial against each of these applicants that each was an assailant of the victim?

MR SOFRONOFF:   Yes, your Honour, it was.

HAYNE J:   In that respect, they stood apart from the factual circumstances dealt with in Barlow or in Gilbert’s Case, did they not?

MR SOFRONOFF:   That is true, your Honour, but the similarity lies in this respect.  If your Honours would go to page 12 of the record.  As your Honours are aware, this was a case where five assailants, so the Crown alleged, attacked Vosmaer, beating him so that a couple of days after the attack he died.  Identification evidence was very controversial and the identification evidence was the focus of the defence case as far as the applicants were concerned at the trial.

The Crown faced the difficulty of seeking to identify who the assailants were and the impossibility of identifying which assailant had struck a fatal blow.  The way the Crown approached it can be seen at the foot of page 12.  Firstly, at line 30:

The Crown contends that they are criminally responsible on either or both of two separate grounds.

At line 40:

The Crown asks you to infer from the nature of the particular assault and the weapons used that those alleged active assailants must have intended to kill him, but the Crown does not have to establish that the blow or blows delivered by any particular assailant caused the death.  It would be enough for the Crown to accept in relation to one of the accused that he aided one or more of the others in the commission of the alleged murder.

His Honour then refers to:

acting in concert together helping one another to achieve the particular result:  the killing of Vosmaer.

Now, it was an open question, in our submission, whether any particular assailant was, in raising his hands or, indeed, using a weapon to hit Vosmaer, doing that with the purpose and intention of helping somebody kill Vosmaer.  That alternative was left to the jury in Barlow’s Case in circumstances your Honours are, I am sure, aware of, but it was not left to the jury in this case.  If your Honours go to page 14.  At the top of the page his Honour said to the jury:

Of course, you must know what is going on, that is, that the object is to kill Vosmaer –

So, the jury was faced with the question, assuming they were satisfied beyond reasonable doubt, that the two applicants did participate in the assault, but then the next question is whether they were satisfied that the object of the assailants, or some of them, was to kill Vosmaer; if so, guilty of murder, if not ‑ ‑ ‑

HAYNE J:   What were the weapons used, Mr Sofronoff?

MR SOFRONOFF:   The weapons used were training weights, dumbbells.

HAYNE J:   Yes.

MR SOFRONOFF:   Could I say, your Honour, that the evidence with respect to MacQueen, in particular, was that some witnesses said he used his fists and his feet, some witnesses said he used weapons.  It was for the jury to determine whether they accepted all of that evidence, that he did all of those things, or some of that evidence, that he only used his fists or only

used his fists and his feet.  If they were not satisfied that he was one of the ones who used the weapon, then it would be a very live issue whether he engaged in the attack with the relevant intention or with the relevant intention of assisting a person with that intention.

Your Honours, in our submission, that first ground raises a live issue as to whether or not the applicants might have been guilty of manslaughter, not murder.  The second ground upon which the Crown put their guilt to the jury your Honours can see at page 14, just below line 20, that is:

a common intention to prosecute an unlawful purpose –

Now, Barlow’s Case of course was distinct but, as your Honours know, Barlow was acquitted of murder on the footing that the jury must have been not satisfied that an intentional killing was part of any plan that Barlow was a party to.  The same arises, with respect, in our submission, to R v Alexanderson.  So, the issue, in our submission, was a live one, although I acknowledge that the evidence that implicated them in an intentional killing or an intention to cause grievous bodily harm was very strong.  While it was very strong, in our submission, it was not a foregone conclusion and the option of murder was not put.

There is this feature, your Honours, that was identified by Chief Justice Gleeson and Justice Gummow in Gilbert’s Case, that you have here a case where prisoners are accused of ganging together to kill another prisoner.  The defence that is put is that Alexanderson and MacQueen were not involved.  Having been satisfied beyond reasonable doubt that they were involved, the jury is left with only two options on this summing up:  to acquit of murder or to convict of murder.  They were not left the middle option of manslaughter, which they took in Barlow’s Case.  In our submission, the result was unfair to these two because one can easily imagine a jury which concludes that they were parties to this assault under no circumstances being willing to acquit them but not having the option of what might have been the proper verdict, manslaughter.

In our submission, your Honours, this is a case in which there was a miscarriage of justice and but for the conclusion of the Court of Appeal in the second attempted appeal that there was no jurisdiction to entertain a second appeal, that matter would have been heard and determined on its merits.  Those are our submissions, your Honours.

McHUGH J:   Yes, thank you, Mr Sofronoff.  We need not hear you, Mr Martin.

It is well established by authority that a convicted person may not pursue a second appeal against the conviction on the merits after the dismissal of an appeal against the conviction on the merits.  The Court of Criminal Appeal applied those authorities in the present case.  Accordingly, it had no jurisdiction to hear the appeal, as it held.  Special leave to appeal must be refused.

AT 11.46 AM THE MATTERS WERE CONCLUDED