Armstrong v The Queen

[2000] HCATrans 518

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S111 of 2000

B e t w e e n -

MARK ANTHONY ARMSTRONG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 2000, AT 2.26 PM

Copyright in the High Court of Australia

MR R. HOENIG:   May it please your Honour, I appear for the applicant.  (instructed by John Bettens & Co)

MR R.D. ELLIS:   I appear for the respondent, if the Court pleases.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Hoenig.

MR HOENIG:   May it please the Court, the preliminary application to dispense with the requirement of ‑ ‑ ‑

GLEESON CJ:   Is that opposed, Mr Ellis?

MR ELLIS:   No, your Honour.

GLEESON CJ:   Yes, you have that leave.

MR HOENIG:   May it please the Court, the special leave point that the applicant seeks is to have the Court determine the common law of Australia to entitle an accused person facing trial to have adequate time and facilities for the preparation of his defence and to communicate with his counsel, something of which it is submitted that the applicant did not have the opportunity in respect of his trial.

If the Court pleases, the applicant was charged with one count of sexual assault without consent and three counts of assault occasioning actual bodily harm before the Coffs Harbour District Court.  Those counts occurred over three separate days.  I have listed them in paragraph 3 of my outline of argument.  He was granted legal laid by the Legal Aid Commission conditional upon him instructing the Commission, rather than the solicitor of his choice whom he sought.

He appealed against that decision, which was refused; made representations to the Legal Aid Commission to have access to a counsel of his choice.  Eventually, a little less than two weeks before the trial, decided to instruct a Legal Aid Commission solicitor who sought to have the applicant transferred from Sydney to Grafton gaol so he could interview him.  But unfortunately he was not seen by his solicitor or counsel until the morning of the trial.  That was the first opportunity he had to provide instructions.  In fact, his counsel had been briefed in another trial at Coffs Harbour District Court that week commencing on the Monday ‑ ‑ ‑

GLEESON CJ:   What was the defence case?

MR HOENIG:   In relation to the sexual assault, the issue was one of consent.  The applicant says that their sexual intercourse was consensual.  The complainant says that there had been one previous sexual encounter ‑ ‑ ‑

GLEESON CJ:   When you say “the applicant says that” ‑ ‑ ‑

MR HOENIG:   That was the applicant’s evidence in the trial.  There was a real dispute between the relationship between the applicant and the complainant.  Both of them agreed that they had met in the methadone clinic, both of them were heroin addicts.  The complainant says that there had been one previous sexual encounter.  The applicant says that there had been a consistent relationship over some two or three months prior to the instance that led up to the sexual assault count.  There was a real issue, not only in relation to consent, but to the extent of the relationship between both the complainant and the applicant.  The complainant’s evidence in relation to the sexual assault matters were uncorroborated.  It is my submission that it is virtually ‑ ‑ ‑

GLEESON CJ:   What opportunity did the applicant lose to advance his case of consent by reason of the circumstances that arose?

MR HOENIG:   The first opportunity he lost was not having sufficient time available to him to interview or to find various witnesses who would corroborate his account about the extent of his relationship with the complainant, which would have been a key portion of evidence that he should have had the opportunity to be able to obtain.  Secondly, he did not have the opportunity to provide to either his solicitor or counsel a proof of evidence in respect of his account prior to the trial, because what eventuated, your Honour, was that three counts of assault occurring on three different days, on the first day a count of sexual intercourse without consent.  He pleaded guilty to the second count of assault on the second day in the presence of the jury panel.  There was no application made to sever the fourth count.  There was no objection to evidence that might have gone to character in respect of the evidence available to the Crown case.  There was no brief made available to the applicant to be able to, in detail, give instructions to his counsel.  So that the circumstances surrounding the conduct of the trial, in my submission, the unfairness invaded it before it even started. 

GLEESON CJ:   Now, that sounds like an issue for argument in front of a Court of Criminal Appeal and, presumably, it was argued.  Where was the error in the reasoning of the Court of Appeal?

MR HOENIG:   Well, what was argued before the Court of Criminal Appeal, your Honour, was the principles in Birks’ Case.

GLEESON CJ:   Did you appear in the Court of Criminal Appeal?

MR HOENIG:   No, your Honour.

GLEESON CJ:   No.

MR HOENIG:   It was never ‑ ‑ ‑

GLEESON CJ:   You are not about to tell us, are you, that you want to put a case to this Court different from the case that was argued in the Court of Criminal Appeal?

MR HOENIG:   An argument that is different, yes, your Honour.

GLEESON CJ:   Right.  So, if you lose at first instance, you instruct a new barrister and he puts an argument in front of the Court of Criminal Appeal that has not been raised at the trial.  Then, if you lose in the Court of Criminal Appeal, you brief a new barrister and he puts an argument that has not been raised in the Court of Criminal Appeal.

MR HOENIG:   Other than, your Honour, if there is a miscarriage of justice that occurs of a right that this Court might find exists at common law, then, in my submission, the Court could consider ‑ ‑ ‑

GLEESON CJ:   You are not suggesting, are you, that your client did not have an adequate opportunity to put his case before the Court of Criminal Appeal?

MR HOENIG:   No, your Honour.

GLEESON CJ:   We here are dealing with an application for leave to appeal from a Court of Criminal Appeal.

MR HOENIG:   Yes, your Honour, and what my submission is ‑ ‑ ‑

GLEESON CJ:   Why should we entertain an argument that was not put to the Court of Criminal Appeal in circumstances where your client had ample opportunity to put that argument to the Court of Criminal Appeal?

MR HOENIG:   Because, in my respectful submission, he was denied a fair trial by a miscarriage of justice that had not been envisaged in an argument before the Court of Criminal Appeal, that, in my submission, this Court could consider applying, bearing in mind the nature of the allegation against him.

GLEESON CJ:   The authorities establish that the circumstances in which this Court will entertain a ground of appeal that was not advanced in the Court of Appeal must be exceptional circumstances.  What are the exceptional circumstances that would warrant us entertaining a ground of appeal that was not advanced in the Court of Criminal Appeal?

MR HOENIG:   The exceptional circumstances, in my respectful submission, are that the applicant received a trial which I respectfully submit was unfair, that there was a substantial miscarriage of justice of which he is serving a sentence of imprisonment of six and a half years with a minimum term of four and a half years, and that his liberty has been taken away from him because of a substantial miscarriage of justice.

GLEESON CJ:   So you do not wish to point to any other circumstances as exceptional?

MR HOENIG:   No, your Honour.

CALLINAN J:   Mr Hoenig, how long had the trial been going before the appellant gave evidence?  The appellant did give evidence, did he not?

MR HOENIG:   Yes, the appellant gave evidence on about the third or the fourth day of the trial.

CALLINAN J:   Yes, and witnesses were called, too, for the appellant in this case?

MR HOENIG:   Yes, two witnesses were called for the appellant.  Yes, they were witnesses who, on the facts of the case, after the evening of the ‑ ‑ ‑

CALLINAN J:   Yes, it related to the relationship, did it not, the evidence?

MR HOENIG:   Yes, it did, or what was observed by those witnesses the day after the alleged sexual assault.

CALLINAN J:   The matters that those witnesses proved were put to any Crown witness who could say anything to the contrary or say anything in support of that?

MR HOENIG:   Those matters were put to the Crown witnesses, but a number of matters were not, and a number of matters were not investigated.

GLEESON CJ:   Are you aware of the fact that this Court gave a judgment yesterday on the question of the circumstances in which in a criminal appeal

an appellant will be allowed to run a point that was not run in a Court of Criminal Appeal?

MR HOENIG:   No, your Honour.

GLEESON CJ:   The case is Crampton v The Queen.

MR HOENIG:   Yes, your Honour.

Your Honour, this Court in Dietrich has, in a variety of their Honours’ judgments, indicated that the application of the International Convenant of Civil and Political Rights can play a part of the development of the common law in this country.  If this applicant is entitled to have adequate time and facilities to instruct his counsel, then he was not given that right and, if that right does exist, then he was denied that right from that inception.

Your Honours, the preparation of a criminal trial is more than just talking to one’s client, with respect.  It requires taking detailed proof of evidence, getting detailed instructions from one’s client, taking detailed proof of evidence from any witnesses that one calls, and then determining a course of action.

Your Honour, if, as this Court has observed in Dietrich, legal representation is an important part of the system of criminal justice, then, in my respectful submission, so is the right to have adequate time and facilities to instruct one’s counsel.  This was a man that was in custody.  This was a man that, although there be some delay, as the Crown submits, on his part providing instructions, he was, in my respectful submission, entitled to have time with his lawyers prior to the trial, not simply on the morning of the trial.  Those are my submissions, if the Court pleases.

GLEESON CJ:   We do not need to hear you, Mr Ellis.

The Court is of the view that there are insufficient prospects of success to warrant a grant of special leave to appeal.  Further, in so far as the applicant seeks to rely on a point that was not argued in the Court of Criminal Appeal, the Court notes that the applicant has been unable to point to any exceptional circumstances justifying a conclusion that he ought to be entitled to rely on a new point in this Court.  The application is dismissed.

AT 2.39 PM THE MATTER WAS CONCLUDED