Baini v The Queen [2012] HCATrans 197

[2012] HCATrans 197

[2012] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M145 of 2011

B e t w e e n -

MICHEL BAINI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 11.27 AM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:   If the Court pleases, I appear for the applicant in this matter.  (instructed by Defteros Lawyers)

MR T. GYORFFY, SC,   May it please the Court, I appear with my learned friend, MS D. KARAMICOV, for the respondent.  (instructed by Director of Public Prosecutions (VIC))

GUMMOW J:   Yes, Mr Tehan.

MR TEHAN: Your Honours, this is a case where there should be a grant of special leave because of the general importance of the issue and that issue is when it can be said that there is a substantial miscarriage of justice where criminal charges are improperly joined. The issue arises in the context of the application of a new provision dealing with the determination of criminal appeals in this State, that is section 276 of the Criminal Procedure Act 2009. That gives rise to the question as to whether this new provision indicates any substantive change to the test or to the approach to be taken by the appellate court as dictated by this Court in Weiss v The Queen (2005) 224 CLR 300.

GUMMOW J: Now, is there much debate about section 276 in the Court of Appeal here, in this case?

MR TEHAN:   It is not completely apparent that the Court applied 276 for two reasons, your Honour.  If I could take the Court to application book page 157.

GUMMOW J:   This is in a setting where there is to be a new trial on count 50 is it, but not them all?

MR TEHAN:   Yes, and what we sought was a retrial on all counts.  One sees that the Court set out three matters commencing at paragraph 63 which had changed since Demirok’s Case. The third of those matters, of course, was that section 568 had been replaced by section 276 of the Criminal Procedure Act:

The proviso has gone.  In terms, an applicant must satisfy the Court, where one or other of paragraphs (b) and (c) applies, that ‘there has been a substantial miscarriage of justice’ . . . 

The first two developments are of present relevance, as is the fourth; but not the third.

Interestingly, over the page at application book 159 in footnote 51 the court states:

It will be the same if s 276(1)(b) or (c) of the Criminal Procedure Act 2009 is in point: Sibanda v The Queen –

But accepting the proposition that the court did in fact apply 276, in our submission, the question which was raised in the application of Sibanda earlier this morning arises in this case and we seek to litigate the same point.  So it is, your Honours, that we seek leave to rely upon an added ground, an added ground to the draft notice which reads “The court below erred in deciding that there was a substantial miscarriage of justice by adopting the approach dictated in Weiss v The Queen and thereby erred in failing to properly apply section 276 of the Criminal Procedure Act –

GUMMOW J:   What would this Court then do by way of an order if you were successful? 

MR TEHAN:   If we were successful ‑ ‑ ‑

GUMMOW J:   What would the sequel be?

MR TEHAN:   The sequel would be that because of the way we are arguing this matter the Court would order a retrial on those counts where no retrial was ordered.  Alternatively, if we ‑ ‑ ‑

HAYNE J:   But that would follow if one, you first construe 276(1)(b), (c) and two, demonstrate that what occurred by reason of the failure to sever amounted to ‑ ‑ ‑

MR TEHAN:   A substantial miscarriage of ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑ a substantial miscarriage thus identified – but is that second step one that you would have this Court undertake, or would you have it go back to the Court of Appeal or how would you have it done?

MR TEHAN:   In the normal course of events it would be a remitter.

GUMMOW J:   I think so.

HAYNE J:   What that excites in my mind, Mr Tehan, is we do not want to be in a position where we are writing a theoretical essay about 276(1)(b), (c).  We have to give it some substance.  Can we do that without diving into the consequences of what you say was an improper failure to sever?

MR TEHAN:   It can certainly be done in this case because this is a good case for the grant of special leave because the nature of the error here was in fact a significant denial of procedural fairness.  We would say that there in fact was a miscarriage of justice in this case.  It was, to use the words of the new provision, an error or irregularity in or in relation to the trial which, in our submission, was fundamental.  It infected the applicant’s trial on all counts.  Yet the respondent, our friend here, says in his submissions that the concept of fundamental error has no place in the appellate task dictated by the new provision.  In our submission, that contention is wrong.

HAYNE J:   Whether it is right or wrong - and I understand what you say about that – I am going back a furlong at the moment, Mr Tehan – the point of construction, if it emerges, emerges from the contrast between paragraph 70, the disposition of no substantial miscarriage, in respect of the - what is it, the first 49 counts.

MR TEHAN:   The “Rifat counts”.

HAYNE J:   The Rifat counts with 71, the contrary answer in respect of count 50, the singular count.

MR TEHAN:   Yes.

HAYNE J:   Yes, I see.  But that would require us, I think, to get into all of it, rather than remit it.

MR TEHAN:   Yes it would, because we seek a retrial on all counts, we do and we say that there should have been a retrial on all counts.

HAYNE J:   Can I ask how big a record this is?  Not that that is determinative, but ‑ ‑ ‑

MR TEHAN:   I think it was a 20‑day trial, was it not?  Yes, about 20 days - the trial, but which, in this case indictable offences were improperly joined.  The factual settings of count 50, as against the other charges, were quite different.  The complainants were different, there was no cross‑admissibility.  They were trials of blackmail.  The jury heard evidence from the complainant on count 50 that the applicant had described himself as a “standover man” and that he had bullied and assaulted people to get what he wanted.  In our submission, this was strong evidence of discreditable conduct, which demonstrated that the applicant was the type of person to commit the offence of blackmail.  This evidence was very prejudicial to the applicant’s trial on the Rifat counts, yet it was evidence which was not admissible on any basis in relation to those charges. 

Finally, special leave should be granted because the verdicts of guilt, other than upon count 50, were sought to be saved on the impermissible basis that the trial judge had given a separate consideration direction.  Reliance was placed upon this Court’s judgment in Dupas (2010) 241 CLR 237. Dupas was an application for a permanent stay because of pre‑trial publicity which had to be considered in the light of judicial directions concerning such publicity in the importance of bringing offenders to trial.  There is a real difference between a direction to ignore adverse pre‑trial publicity extraneous to the trial and a direction to give charges, the subject of trial, separate consideration. 

GUMMOW J:   Can we just look at paragraph 71 of Justice Ashley at page 60 of the application book?  The second sentence:

the refusal to sever did bring about a substantial miscarriage of justice with respect to the applicant’s conviction on that count.

That is your complaint?

MR TEHAN:   Yes.  We say that you cannot divide up or tarry with an application to sever.  It should have resulted in a retrial on all counts.  There was a substantial miscarriage of justice for that reason.  I might say this, that in relation to the new ground that we seek to litigate, there is in this State a real degree of uncertainty as to how this Court’s decision in Weiss dovetails, if it dovetails at all, with section 276. Resolution of that matter, in our submission, can naturally, of course, only take place by this Court and special leave, for that reason alone, should be granted. We do not rely upon ground 1 of the draft notice ‑ ‑ ‑

GUMMOW J:   Let us have a look at the draft notice.  That is at page ‑ ‑ ‑

MR TEHAN:   We do not rely upon ground 1 ‑ ‑ ‑

HAYNE J:   Is this at page 177?

MR TEHAN:   It is, your Honour.

GUMMOW J:   Ground 1.

MR TEHAN:   I notice that ground (b) of that reference to the proviso ‑ ‑ ‑

GUMMOW J:   Sorry, we are looking at the draft on 177?

MR TEHAN:   Yes.

GUMMOW J:   Ground 2.1 is out, is that right?

MR TEHAN:   Ground 2.1 is out, your Honour.

GUMMOW J:   As to 2.2?

MR TEHAN:   We would seek to still rely upon.

GUMMOW J:   You would want to add ‑ ‑ ‑

MR TEHAN:   We would want to add the added ground, which raises the matter that we referred to, Weiss and 276.  It is an important matter, your Honour, because it cannot be that an appellant is called upon to examine the record of the trial to disprove his guilt in a court of appeal.  It clearly arises in this case because the court did apply Weiss and they found that the evidence on the Rifat counts was strong.  Now, that is not the appropriate approach and, in our submission, under 276 now the proper approach is to concentrate upon the nature or irregularity within the trial which is alleged and to examine critically whether that is of such a nature that it results in a substantial miscarriage of justice.  Now, that is the statutory test, but it is different from the approach dictated by this Court in Weiss.  Therefore special leave should be granted.

GUMMOW J:   Yes, Mr Gyorffy.

MR GYORFFY:   To answer your Honour Justice Hayne’s point, this case cannot be determined without looking at the exercise of the discretion in relation to severance.  It is the alleged breach that gives rise to the need to look at the miscarriage of justice and taking that point ‑ ‑ ‑

HAYNE J:   If leave went would you seek to dispute that severance should have occurred?  Do you want to say that count ‑ ‑ ‑

MR GYORFFY:   I disputed it down below, your Honour, I argued that it ‑ ‑ ‑

HAYNE J:   But would you seek to maintain in this Court that the indictment as presented could go forward unsevered?

MR GYORFFY:   Yes.  Essentially it comes down to this, that the reason why their Honours were correct in saying that the jury could or would follow the directions given and would not fall into error was because this was a case in which the two groups of charges were capable of being compartmentalised.  So there is only one charge ‑ ‑ ‑

HAYNE J:   Which rather suggests that the indictment might usefully have been severed, Mr Gyorffy, but there we are.

MR GYORFFY:   That is an argument that could be addressed, yes.  I am not saying that is an easy argument, your Honour, but I think there is an argument there.

HAYNE J:   Well, if it has substance put it, if it has not abandon it at some point, Mr Gyorffy, not now.  Yes, do go on.

MR GYORFFY:   So the point is that, that the jury could be given directions in a compartmentalised way in relation to the Srour count, which is a single count, and then be given directions in relation to the remaining Rifat counts.  There is criticism made of the observations of the court that the fact that there were some acquittals in relation to the Rifat counts means nothing.  Well, we submit it means an awful lot because what it shows is that the jury was considering each count individually on the evidence.  Had the jury simply been blown away by the presence of the other count and the evidence in relation to it, then the expectation would be that there would be no acquittals at all.

So the decision that has been made is quite reasonable and rational.  Insofar as the rest of the argument goes this Court has been at great pains now since…..and Baiada Poultry recently to indicate that this is not an exercise that requires compartmentalisation.  Yes, it is as our learned friend’s argument is that if you can characterise a mistake as being a failure to sever then that means that there has been a miscarriage of justice.  What this Court has said time and time and time again now is that judges are set free from those constraints.  What a judge has to do or a court of appeal has to do is consider the manner in which the error has contributed to the fact that the person did not get a fair trial.

What we submit here is that that is just not made out.  The court’s reasoning as to why there was no error in relation to the 49 counts stands up because what they are saying is that there was so much evidence there that is looked that, that the little bit of evidence coming from one would be excluded from the reasoning process and would not infect it.  Insofar as the other way is concerned going from the 49 counts to a single count, once a jury has made a conclusion that those other 49 counts are made out that can swamp the evidence and the reasoning in relation to the single count. 

That is what is underlying this decision and we submit that is correct.  So there is no inconsistency or illogicality between differentiating between the 49 counts and the single count.  Really, unless there is anything else your Honours want me to address, they are my submissions.

GUMMOW J:   There will be a grant of special leave in this matter.  However, the draft notice requires amendment by deletion of what is taken to be 2.1 and the whole of 2.2 becomes 2.1.  There will be the added ground to be numbered 2.2 in the terms:

The Court of Appeal erred in deciding that there was a substantial miscarriage of justice by adopting the approach dictated in Weiss v The Queen (2005) 224 CLR 300 and thereby erred in failing properly to apply section 276 of the Criminal Procedure Act 2009 (Vic).

This should be a one‑day appeal I would think, Mr Tehan.

MR TEHAN:   Yes, I would think so, your Honour.

GUMMOW J:   But the parties should be alerted that if the Registrar feels that the appeal book is becoming bloated she will be very prompt in referring the matter for directions by a Justice.

MR TEHAN:   If your Honour pleases.

GUMMOW J:   We will adjourn to reconstitute.

AT 11.47 AM THE MATTER WAS ADJOURNED