Aston v The Queen- Burnell v The Queen

[1995] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No S157 of 1994
  Sydney

B e t w e e n -

DAVID JOHN ASTON

Applicant

and

THE QUEEN

Respondent

Office of the Registry  No B18 of 1995
  Brisbane

B e t w e e n -

PAUL BURNELL

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 11.43AM

Copyright in the High Court of Australia

__________________________

BRENNAN CJ:   You appear in person, Mr Aston?

MR D.J. ASTON:   I do.

BRENNAN CJ:   Are you appearing for yourself, Mr Burnell?

MR P. BURNELL:   I am.

MR B.R. MARTIN QC:  May it please the Court, I appear with my learned friend, MS S.A. RAYMOND, for the respondent.  (instructed by M.Rozenes, QC, Director of Public Prosecutions (Commonwealth))

BRENNAN CJ:   Mr Aston, do you wish to present your application?

MR ASTON:   Yes, your Honour.

BRENNAN CJ:   You understand the Rules of the Court are that applications for special leave are limited to 20 minutes each.  Yes, Mr Aston.

MR ASTON:   I seek special leave to appeal against the majority verdict of a jury in which I was convicted on the basis of a High Court decision of Cheatle in June 1993.  I would just like to say I do not come to this Court lightly.  I am cognisant

of the importance of this Court and the workload it faces and I only come here after having failed to institute proceedings in the South Australian court, having initially been unable to get any assistance from the Crown as to how they want me to approach this and after correspondence with the Commonwealth Ombudsman.  Finally, the Attorney‑General suggested I should lodge a special leave application here.

The respondent has conceded that a conviction is not valid but is objecting to my special leave application.  I notice that in my reading - and I have done quite a bit recently - Justice Isaacs in a minority judgment said:

to see whether there is prima facie error that ought to be corrected -

that is part of the course of justice that this Court acts.
I notice that fortunately Act No 12 of 1984 inserted section 35A into the Judiciary Act.  Part (b) of that says:

whether the interests of the administration of justice -

call for a grant of special leave, this Court can grant a special leave application.

I would like to suggest that section 35A(b) is relevant in my case for a number of reasons.  The first reason that I would like to advance is that an injustice has occurred.  I think the fact of the respondent’s preparedness to concede the appeal if special leave is granted is an unusual circumstance in itself and it demonstrates that there is  injustice.  I also note the respondent acknowledges on page 2 of their written response:

there are more appropriate means of remedying the injustice -

again acknowledging there is an injustice.

I have also read the recent Western Australian Supreme Court decisions of El Asmar v The Queen and Martin and Smith v The Queen.  I notice there on the question of majority verdicts, that court said, “There has been a miscarriage of justice”.  I also noticed that that point was considered by the respondent, who is the same respondent here, and then I read in Chidiac v The Queen this Court said, “An appellate court is entitled to set aside a conviction on any ground which in its opinion amounts to a miscarriage of justice”.

The respondent has said in his written response that I have other alternatives, and one is that I can go to the Attorney‑General and ask for a pardon.  But my understanding of a pardon is that it is not an effective remedy for an invalid conviction.  I read Kelleher v The Parole Board of New South Wales 156 CLR, and that seems to suggest that there is some doubt whether a pardon actually removes a conviction.  So I do not think a pardon is a suitable option for me.

The respondent has also said that I should not come to this Court and I could use a section 369 application and perhaps have a rehearing in the South Australian Criminal Court, but a section 369 application is at the discretion of the federal Attorney‑General.  Having written to the federal Attorney‑General, he said there could be no exercise of a section 369 application “until all legal avenues have been exhausted”.  He in fact suggested I come to this Court.  I noticed in some of my other reading that a section 369 application appears to be an action of a last resort.  In White - I notice it was SASR.  I am not sure what that stands for:  South Australian ‑ ‑ ‑

DAWSON J:   State Reports.

MR ASTON:   When they are referring to section 369 they said that a 369 application is appropriate “where the right of appeal has been exhausted”.  I am not convinced the right of appeal has been exhausted yet.

There was another question raised by the respondent as to why an appeal should not be heard.  They said, looking at what happened in Western Australia, because the Western Australian court entertained further appeals, I could go back to the South Australian court and have a further appeal.  But, looking at the extra documents the respondent put in on Friday challenging my right to make a second application for special leave, it seems like they are trying to have it both ways there.  They are saying that it is all right to go back to a South Australian Court of Criminal Appeal to have that reheard, but it is not good enough to come back to this Court and have it reheard.

In my reading I find it unclear under what circumstances second appeals can be heard.  I notice that two Justices of this Court in Pantorno said that a second appeal to a Court of Criminal Appeal could be made, but I notice that three other Justices decided to comment.  I was referring to this case and I notice this is mentioned in Pantorno.  I noticed at the end of Pantorno special leave was granted in the interests of the administration of justice.  Then I see more recently in cases like Vella v The Queen 4 WAR 278 they say it is not competent to introduce a second appeal.

The question of whether or not I can make a second appeal, most of the judgments the Crown seem to be referring to are judgments which have already been - they say when the appeal has been determined.  In my case with the South Australian Court of Criminal Appeal, the appeal was determined and in actual fact the court went further than that; they actually imposed a new sentence.  They went further than the Western Australian courts did in their appeal, so they actually quashed the sentence and I think moved a step further away.

Notwithstanding the power of the Court of Criminal Appeal to hear a second appeal, I have attempted via the registrar of the South Australian court to actually lodge an appeal and I was told that they were unable to process such an application.  I understand that is not going to the stage of actually formally lodging an application, but I have made an attempt there.

TOOHEY J:   Mr Aston, I am not clear when you said earlier that later material filed on behalf of the respondent, the question of the capacity of the court to entertain a second appeal.

MR ASTON:   Your Honour, on Friday I received a fax from the respondent where they put in an extra argument.  Initially in their written response to my application, they did not raise the question about whether I could make a second special leave application.  Then on Friday I received ‑ ‑ ‑

TOOHEY J:   Can you identify the document for us.

MR ASTON:   I probably could, your Honour, yes.  It is the one which mentions both David Aston and Paul Burnell on the cover.  It is the “Respondent’s Summary of Argument, Order 69A Rule 8”.

TOOHEY J:   Thank you.

MR ASTON:   As part of my research, I read the comments of Sir Anthony Mason regarding special leave applications.  I noticed that he said that one of the grounds when a special leave application is granted is you must consider whether the appeal has a prospect of success.  I think the fact that the respondent has said they will concede this appeal if special leave is granted suggests this appeal has a reasonable prospect of success.

There is another issue.  I would like to briefly point out what the consequences are for me of not getting special leave to appeal.  I think we are talking about an injustice.  Despite the fact that the conviction is invalid, at the moment there is doubt whether any judicial body other than this Court has actually the power to act.  If special leave is not granted, I would be left with an invalid conviction, to continue to live with the disgrace of a criminal conviction and all its side effects, both emotionally and practically, for perhaps as much as another year while I pursue other avenues.

The Attorney‑General might grant a pardon despite its limitations, or he could perhaps order a new Supreme Court hearing.  Alternatively, perhaps I might successfully lodge a new application to appeal with the South Australian Supreme Court.  None of these options is certain and I still could be left holding a conviction which is generally agreed to be invalid without the means of recourse.  Even if I was successful on one of those other avenues, it is going to be another 12 months, a lot of expense and time on my behalf and a further limitation to my career.

I note that Justice Isaacs said:

If, therefore, for any reason the Court considers the cause of justice better served by granting than by refusing leave to appeal, there is nothing, in my opinion, to counterbalance that opinion -

I would just like to address briefly this question which I received on Friday regarding whether or not I am allowed to make a second special leave application.  It seems to me as if there are a number of questions that need to be determined here by reading.  Firstly, is there a distinction between a refusal of special leave and a decision given on appeal?  I noticed in Attorney‑General for the Commonwealth v Finch this Court said:

For the purposes of allowing an appeal under section 73 of the Constitution, the refusal of an application for special leave is not the same as the determination of appeal.

I also notice this Court in Cachia v St George Bank did not eliminate the possibility of a second appeal.  They did say it would be in rare circumstances.

If the Court were to decide that special leave to appeal is the same as an appeal, then I would like to look at whether this Court can hear a second appeal.  It strikes me that there was a suggestion that it was possible in Pantorno v The Queen where two Justices of this Court said:

there seems to be an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a court of criminal appeal once its judgment is pronounced -

I have another case I looked at in this regard, your Honours, which I only photocopied on Saturday when I was at the law library doing some research.  It is an English case.  If I could give your Honours a copy.  It is Reg v Pinfold (1988) 2 WRL.  I think that is English Weekly Law Reports.  I notice there they say:

there are perhaps two possible exceptions or apparent exceptions.....where the decision on the original appeal.....can be -

reopened.  The first of these is:

where the decision on the original appeal.....can be regarded as a nullity.

I think the fact that this Court determined majority verdicts are a nullity in Cheatle and I notice that that argument has been put forward in the Western Australian cases recently where they also said a majority conviction is a nullity.  Therefore, if that is the case and you do decide leave to appeal is the same as appeal, I think I get some value from this case of Reg v Pinfold.

There is another alternative, your Honours.  If none of those avenues are acceptable, I have read Autodesk v Dyason.  If I could then move, I suppose, to reopen my original application for special leave.  I notice in Autodesk v Dyason this Court said:

As a court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way which inhibits the capacity to rectify what it perceives to be an apparent error.

Justice Brennan said:

This Court has undoubted jurisdiction to recall the judgment, at least prior to formal entry.

I think perhaps one of my strongest arguments of all is that advanced in Morris by Justice Dawson where it was said:

It would be wrong to attempt to formulate rules which would confine the exercise of the jurisdiction to grant special leave.

On this question again, if I could refer back to Justice Isaacs in Eather v The King, I notice he said, referring to an illegal conviction:

it would be the acme of absurdity to suggest that this Court’s revision of such a conviction -

referring to an illegal conviction -

or decision can be considered an impediment to or an interposition in the administration of justice.

There is another issue raised which I received on Friday about the fact that the majority decision was not originally raised in my first appeal.  I notice in O’Brien v Komesaroff that this Court says:

In some cases when a question of law is raised for the first time in an ultimate court of appeal.....it is expedient in the interests of justice that the question should be argued and decided.

I also noted in the Cheatle verdict that that issue of the majority verdict decision was not raised in the South Australian Court of Criminal Appeal.  It was raised for the first time here, as were the two appeals in Western Australia.

Finally, I respectfully suggest that the interests of the administration of justice require the intervention of this Court to ensure I receive procedural fairness.  I notice that in Ugle v The Queen in similar circumstances this Court said:

The jurisdiction of the Court of Criminal Appeal is exhausted and the question would remain undetermined unless special leave be granted.....Special leave is required in the interests of the administration of justice.

That is all I wish to say, your Honours.

BRENNAN CJ:   Thank you, Mr Aston.  Mr Burnell.

MR BURNELL:   Your Honours, I would just like to rely on what Mr Aston has to say in support of my application.

BRENNAN CJ:   Very well, thank you.  Mr Martin.

MR MARTIN:   If the Court pleases.  The Director concedes that the verdict was unconstitutional following the decision in Cheatle’s case.  It should be quashed but the Director is concerned to alert the Court to the possibilities of alternatives and to the ‑ ‑ ‑

DAWSON J:   Why are they relevant in this case if the convictions must be quashed?

MR MARTIN:   I suppose the first question is whether the Court is prepared to indicate that it has jurisdiction ‑ ‑ ‑

DAWSON J:   Why should it not?

MR MARTIN:   ‑ ‑ ‑ to entertain a second application for special leave or to reopen the first one.

DAWSON J:   There is no suggestion anywhere that it has not, is there?

MR MARTIN:   No, there is not.

DAWSON J:   And there is no issue which has been determined as there would be on an appeal.

MR MARTIN:   That is precisely what we indicated in our outline.

DAWSON J:   It is problematical whether there are any remedies in South Australia.  Perhaps “problematical” is the wrong word, but it is certainly not beyond doubt, is it?

MR MARTIN:   I agree with that, your Honour.

DAWSON J:   Why should we put these two applicants to the expense and inconvenience of pursuing avenues which are not clear when ultimately they are entitled to the relief which they seek?

MR MARTIN:   We are not suggesting that your Honours should, if you are satisfied that there is jurisdiction to entertain a second application for special leave or to reopen the first application.  If the Court is satisfied of that - and we are not contesting that there is - then we do not argue against the allowing of special leave and the quashing of the conviction.  I am instructed in that event to seek an order for a retrial, leaving it to the Director to take into account ‑ ‑ ‑

DAWSON J:   But the sentences that these men have served have expired.

MR MARTIN:   I understand that, your Honour, and I understand the difficulty of putting that proposition.  What I am instructed to put to the Court is that questions of public interest of this nature are generally determined by the Director in the exercise of his discretion.  I can indicate that the Director’s view is that public interest does not require a retrial.  Nevertheless, I am formally instructed to ‑ ‑ ‑

DAWSON J:   Justice does not require it either, does it?

MR MARTIN:   No, your Honour; I would not suggest that it does.  So in essence, that is the position that is put by the Director.

BRENNAN CJ:   Mr Martin, it seems to me that there is a distinction to be drawn between this case and the ordinary case of appeals.  This is not the kind of case which might have been the subject of an appeal under a statute.  It is really a case of coram non judice and an order being made for a venire de novo, is it not?

MR MARTIN:   Yes, your Honour.

BRENNAN CJ:   It is a very different case from the ordinary appeal.

MR MARTIN:   Yes, it is.  We do not contest that at all.  We do acknowledge that there are difficulties in trying to pursue the other avenue such as taken in the Western Australian court.  There is no guarantee the South Australian court will take the same approach.  If the Court pleases.

BRENNAN CJ:   Do you wish to say anything further, Mr Aston?

MR ASTON:   Just one question, your Honour:  if you did order a retrial and if perhaps I was retried and if I was found guilty, perhaps I would not receive - if I received the same sentence, I would not have to serve it perhaps.  I have already served it.  But in a couple of years’ time the Spent Convictions Act is about to finish for me because it was an offence under 12 months and that would mean I would then have the Spent Convictions Act and another 10 years on top of that before I had any effective relief.  I do not think that would be equitable.  That is all, your Honour.

BRENNAN CJ:   Do you wish to say anything further on that?

MR BURNELL:   No, I have nothing to add.

BRENNAN CJ:   The Court will adjourn briefly in order to consider the course it will take.

AT 12.04 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.19 PM:

BRENNAN CJ: In these cases the convictions of the applicants were founded on the verdict of a majority of a jury empanelled to determine the issues joined on a plea of not guilty to indictments charging the applicants with conspiracy to defraud the Commonwealth. The verdicts were a nullity: they were inconsistent with the requirement of section 80 of the Constitution. So much was held by this Court in Cheatle v The Queen (1993) 177 CLR 541.

These applications are thus exceptional, to be distinguished from cases in which the grounds relate to a miscarriage of justice after a trial and conviction based on a verdict validly returned.  The exceptional nature of these applications warrants both the allowing of a second application for special leave to appeal and the immediate allowing of the appeal.
Whilst the general principle remains that all other appropriate avenues for relief should be pursued before special leave to appeal is sought from this Court, in these cases it is conceded that the applicants’ convictions cannot stand having regard to the decision in Cheatle.  If the applicants were to fail in obtaining such remedies as are available to them in the State of South Australia, this Court would be bound to grant special leave to appeal and to allow the appeals.  In the circumstances, there is nothing to be achieved by requiring the applicants to pursue those remedies before granting them the relief to which they must ultimately be entitled.

Accordingly, the time for applying for special leave to appeal is extended in each case.  The applications for special leave are granted and the appeals are allowed.  The orders of the court below are set aside and in lieu thereof it is ordered that the applicants’ convictions be quashed.  This Court makes no order as to the retrial of the applicants.

AT 12.21 PM THE MATTER WAS CONCLUDED