An v The Queen

[2007] HCATrans 600

[2007] HCATrans 600

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S228 of 2007

B e t w e e n -

QING AN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2007, AT 12.10 PM

Copyright in the High Court of Australia

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

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

GUMMOW J:   Yes, Mr Game.

MR GAME:   If the Court pleases.  In what have been described as jury irregularities cases two different tests have been applied and their application has different consequences.  One test taken from the law relating to apprehended bias means that at the point at which impartiality cannot be insured, the verdict must be quashed.  The other takes its analogy from admission of evidence and makes an assessment in terms of whether or not what occurred is likely to have affected the verdict.  We accept that if the second test is the correct test and the only appropriate test, then we cannot succeed. 

GUMMOW J:   You have to face up to the proviso, have you not?

MR GAME:   What we say is this.  If the Webb and Hay test relating to bias applies, then no question of the application of the proviso applies at all because the application of the Webb and Hay test means ‑ ‑ ‑

GUMMOW J:   The Webb and Hay test being what?  One thing I get suspicious is when people say something is a question of fact.  The other thing I get suspicious about is when they start saying there is a test from some case.

MR GAME:   Can I take your Honours to Webb v The Queen and I will show you ‑ ‑ ‑

GUMMOW J:   We know Webb.  Just tell us what the test is.

MR GAME:   The test is that in determining whether or not any regular incident involving a juror warrants a discharge or in due course a quashing of the conviction, if the incident notwithstanding the warning gives rise to a reasonable apprehension or suspicious of a fair-minded, et cetera, person that the jury has not or will not discharge its task impartiality, then at that point, in our submission, it is tolerably clear that the conviction must be quashed.  The reason for that is the reason Justice Brennan gave in Webb and Hay, which is that it is a fundamental defect in the same sense as jurisdictional error is made out in administrative law when an apprehension of bias is established.  If one looks at the authorities which I will take your Honours briefly to shortly ‑ ‑ ‑

GUMMOW J:   How does all that stand up to Weiss?

MR GAME:   That is a large question, your Honour.  That is a very large question as to how that stands up to Weiss.  Whether or not one turns to ‑ ‑ ‑

GUMMOW J:   The criminal Bar seems to think Weiss decided nothing.  You just keep talking about Webb all the time.  There are some words of caution in Weiss, I know.

MR GAME:   I understand that, your Honour.

GUMMOW J:   The tail is rapidly coming to wag the dog.

MR GAME:   I am not actually trying to avoid Weiss at all.  I am endeavouring to make a submission that conforms with Weiss because we would submit that ‑ ‑ ‑

GUMMOW J:   But you have then to face up with what – is it Justice Hulme in the Court of Criminal Appeal?  He was with you up until this stage.

MR GAME:   Yes, but he said he would apply the proviso and our whole point is that if you come to this point, then no question of the application of the proviso arises because you have concluded that it has not been a fair trial in exactly the same way as you would conclude that before an inferior court or before a tribunal that there has been an apprehension of bias.  So our submissions is that there is ‑ ‑ ‑

GUMMOW J:   The bias being what in this case?  How is there any analogy with bias?

MR GAME:   The analogy with bias is this, your Honour, that there is an apprehension – the jury were brought the syringe to the attention of the sheriff’s officer.  The judge gave the jury a warning which made it clear that he had no idea how the syringe ‑ ‑ ‑

GUMMOW J:   Exactly.

MR GAME:   But that is the whole point, your Honour.  This is not a small incident.  This is, shall one say, in the course of deliberations a drama for the jury and for the court and special caution – one sees that from Justice Brennan’s judgment in Webb – is required in relation to incidents that occur at that point and within an hour of the direction the jury has convicted and they are the ones that have complained about it.  So what we say is ‑ ‑ ‑

GUMMOW J:   Some person might think it is not surprising they got a move on and decided.

MR GAME:   I understand that, your Honour, and I accept that if it comes to, shall I say, an assessment of the significance of what occurred as against the weight of the evidence in the case, then we cannot succeed.  But what I do say is that this is a case that raises squarely what is the appropriate test to apply in these circumstances and does the proviso apply to this?  May I say briefly, your Honours, that the cases ‑ ‑ ‑

GUMMOW J:   Again it becomes a question of form controlling substance.  It may be none the worst for that, but that is what it is.

MR GAME:   That is absolutely true.  There is no doubt, if you accept my submissions, that is the consequence of it because it is a hypotheticalised proposition and it a hypotheticalised proposition about the perception of some other person.  So what may or may not have been made clear from the written submissions is that if one examines the decisions at State level – and I am thinking here of Queensland, Western Australia and Victoria and New South Wales, and one can see that from the decision in K and the short quote that we have given from a Victorian case – the decisions are all over the place in terms of what test applies to what circumstance and, really, no clear principle applies as to how one deals with what are described as jury irregularities and what ‑ ‑ ‑

KIEFEL J:   Is that because the factual situations are different?

MR GAME:   No, because there is confusion in the cases as to how the tests apply.  You can see that if your Honours go briefly to the case of K 59 NSWLR 431 at the top of 445. This is really the leading case in New South Wales. It was thought that because something happened post‑verdict in Queensland, made Webb apply.  It was thought in Fairclough, just below, that because it occurred before verdict, upon a jury discharge application, Webb applied.  It was thought in the Northern Territory R v Cant, at the bottom of that page, that Webb applied.  Then if you go to the close of our submissions at page 205 a case of Gae in Victoria, it seems to be thought that both tests apply simultaneously to the same situation. 

I accept entirely that there is a large looming question about Weiss, that there is a clear level of uncertainty about what principles apply to this situation and we submit that this is an appropriate case and that the request for the discharge was adequately and properly taken and focussed on what could be described as the potential prejudice arising from this incident.  Those are our submissions.

GUMMOW J:   Thank you.  Yes, Mr Frearson.

MR FREARSON:   Thank you.  The logical extension of my friend’s submissions is that if you had a case involving the wrongful admission of evidence, you can never apply the proviso.  That must be the logical extension.  This is not a suitable vehicle, in any event, because it was common ground in the Court of Criminal Appeal that the Marsland test applied and there was not one mention of Webb and Hay. 

The Court of Criminal Appeal determined that there was no miscarriage of justice having regard to the irregularity and the directions of the trial judge in the issues in the trial.  There is no logical reason why the test in this situation should be any different from the test in relation to the wrongful admission of evidence.  There was no juror who was the source of any irregularity.  Webb and Hay was a case where the conduct of a juror was in issue.  The juror in Webb and Hay was not the source of the irregularity.  This is not a bias case at all and it is dressed up as a bias case.

KIEFEL J:    In Webb, was the proposition put that the Crown case was very strong as it was put in Marsland?

MR FREARSON:   I am not sure, your Honour.

KIEFEL J:    It does not appear to have loomed as such an important factor as it did in Marsland?

MR FREARSON:   No, your Honour, but in Webb clearly it was the conduct of the juror in the presentation of the flowers that the juror was the source of the potential bias and one can well understand why you would apply the particular test to that.  But, really, the jurors had nothing to do with this.  This was some inadvertent syringe in a jacket that happened to be before the jury.  The jury quite properly brought it to the attention of the trial judge and trial judge quite properly gave appropriate directions about it.  This is not an appropriate vehicle, particularly because no one mentioned Webb and Hay in the Court of Criminal Appeal.

GUMMOW J:   Thank you.  Yes, Mr Game.

MR GAME:   If the Court pleases.  Your Honours may or may not be aware that in Webb and Hay itself there was a distinction drawn between wrongful admission cases and bias cases because the fact that Mrs Hay had been in gaol was blurted out and the court spoke of two different tests.  The difficult end of it arises when – I know that Justice Deane dissented, but he spoke of four categories of bias and the forth concerned what he described as extraneous information coming to the knowledge of jurors.  It is in this area where you have extraneous material which is not, on anybody’s view, the proper matter of admission or otherwise of evidence coming to the

jury’s attention in circumstances where that raises a question about the process that we say the test applies.  If the Court pleases.

GUMMOW J:   The prosecution case here was extremely strong.  The direction given the jury respecting the significance of the syringe found in the jacket was clear.  There is no question of bias on the part of the jury.  This is not an appropriate case to test the larger questions respecting the operation of the proviso which counsel for the applicant would seek to agitate on an appeal in this Court.  Accordingly, special leave is refused.

The Court will adjourn to reconstitute.

AT 12.22 PM THE MATTER WAS CONCLUDED