Baker v The Queen (No 2)

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0120

KHALID BAKER	Applicant
v
THE QUEEN (No 2)	Respondent

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JUDGES:	EMERTON P, PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2022
DATE OF JUDGMENT:	1 August 2022
DATE OF REASONS:	23 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 171

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CRIMINAL LAW – Second or subsequent appeal based on fresh evidence appeal – Fresh evidence constituted by statements of co-accused – Whether Court of Appeal has inherent power to order attendance of co-accused for examination.

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Counsel
Applicant:		Ms J Condon QC
Respondent:		Ms E Ruddle QC with Ms B Goding
Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
PRIEST JA
NIALL JA:

On 1 August 2022, the Court made an order (‘the order’) sought by the applicant that ‘Binyam Alemu attend and be examined before the Court of Appeal … at 10.15 am on Tuesday, 23 August 2022’.
These are our reasons for making the order.
Between March and May 2008, the applicant and an associate, Binyam Alemu (‘Alemu’), were jointly tried in the Supreme Court for murder. On 26 May 2008, the jury convicted the applicant of murder,[1] but acquitted Alemu (including of the alternatives of manslaughter and defensive homicide). The applicant’s challenge to his murder conviction failed in this Court in 2010,[2] as did a subsequent appeal to the High Court in 2012.[3]
[1]On 2 October 2008, the trial judge sentenced the applicant to 17 years’ imprisonment with a non-parole period of 12 years: R v Baker [2008] VSC 390.
[2]Baker v The Queen [2010] VSCA 226 (Maxwell P, Buchanan and Bongiorno JJA) (‘Baker (CA)’).
[3]Baker v The Queen (2012) 245 CLR 632 (‘Baker (HC)’).
Pursuant to the ‘second or subsequent appeal’ provisions in Part 6.4 of the Criminal Procedure Act 2009 (‘CPA’), by a notice filed 1 September 2021 the applicant seeks the leave of this Court to appeal against his conviction. Statements made by Alemu – taking various forms – are pivotal to the application. They are said to constitute the evidence which is ‘fresh’ and ‘compelling’.
The charge of murder related to the death of Albert Snowball, who died from injuries suffered in a fall from a warehouse window in the early hours of 27 November 2005. The prosecution alleged that the applicant and Alemu murdered Mr Snowball by (in one way or another) causing his defenestration.
For present purposes, we need not set out the evidence at trial, which, with respect, is accurately summarised in the joint reasons of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ on the appeal.[4] It is sufficient to note that an issue in the applicant’s trial was whether the jury should be permitted to take into account Alemu’s statements in his record of interview with police – which, on one view, exculpated the applicant – in considering whether the prosecution had established the applicant’s guilt. Applying Bannon,[5] however, the trial judge ruled that Alemu’s statements were not admissible in the applicant’s trial under any exception to the hearsay rule. In its judgment, the High Court upheld the trial judge’s ruling.
[4]Baker (HC), 638–41 [18]–[33] (emphasis added).
[5]Bannon v The Queen (1995) 185 CLR 1.
As we have said, by a notice dated 1 September 2021 the applicant initiated an application to this Court pursuant to the recently enacted ‘second or subsequent appeal’ provisions of the CPA (ss 326A to 327S) for leave to appeal against his conviction. The sole ground of appeal is formulated as follows:
There is fresh and compelling evidence that demonstrates there has been a substantial miscarriage of justice: Mr Alemu has admitted that both that he had the final physical contact with the deceased which caused the deceased to go out the window and that the applicant was not involved in or proximate to the final physical contact.
On 10 May 2022, the Court heard argument from senior counsel then appearing for the applicant in support of the application for leave to appeal. In the course of oral submissions, the Court drew senior counsel’s attention to perceived deficiencies in the ‘fresh evidence’; and in particular, whether the evidence could be characterised as ‘compelling’ in the absence of testimony from Alemu. Enquiries then made by the applicant’s legal advisors with respect to Alemu’s availability to give evidence revealed that he was overseas. As a result, the Court adjourned the hearing to 13 May 2022, so that the applicant’s advisors could make further enquiries concerning Alemu’s availability.
When the hearing resumed on 13 May 2022, senior counsel for the applicant sought an adjournment to permit Alemu to return from overseas and then ‘give evidence in Court’. The Court accordingly adjourned the part-heard application for leave to appeal until 1 August 2022.
On or about 27 July 2022 – shortly before the hearing of the application was to resume in this Court – the applicant dispensed with the services of his former solicitor and counsel. He engaged a new solicitor to act on his behalf, who in turn briefed new senior counsel.
Two days later, on 29 July 2022, the applicant’s new lawyers made an application to adjourn the hearing fixed for 1 August 2022. The Court refused that application.
In the result, the part-heard application once more came before the Court on 1 August 2022. Alemu had not voluntarily attended the hearing for the purposes of examination. As a result, counsel for the applicant sought an order that Alemu attend and be examined before the Court. Counsel invoked s 318 of the CPA, and, in the alternative, the Court’s inherent powers.
Counsel for the Director of Public Prosecutions resisted the making of an order compelling Alemu’s attendance for examination. They submitted that neither s 318, nor any inherent power, permitted the Court to make such an order.
After hearing argument, we were persuaded that, in the peculiar circumstances of this case, the Court had no power under s 318 of the CPA to make the order sought by the applicant. We were, however, firmly of the view that, in the exercise of inherent jurisdiction, this Court had power to order that Alemu attend and be examined. The Court made the order accordingly.
We consider it to be plain that s 318 of the CPA – which, for the purposes of the second or subsequent appeal provisions, is picked-up by s 326I – has no application in the unusual circumstances of this case. It provides:[6]
[6]Emphasis added.
318 Order for examination of compellable witness
(1) For the purposes of this Part, if the Court of Appeal considers that it is in the interests of justice to do so, the Court of Appeal may order any witness who would have been a compellable witness at the trial to attend and be examined before the court, whether or not the witness was called at the trial.
In our view it is clear that the reference to ‘the trial’ in s 318 must be reference to the joint trial of the applicant and Alemu. That being so, in light of the common law rule that an accused person is a competent but not compellable witness for a co-accused being jointly tried,[7] Alemu was not a ‘witness who would have been a compellable witness at the trial’.
[7]See now Evidence Act 2008, s 17.
When considering the Court’s inherent jurisdiction to make the order, the starting point is s 10(3) of the Supreme Court Act 1986, which provides that the Court of Appeal ‘may, in proceedings before it, exercise every jurisdiction or power’ of the Supreme Court (‘the Court’).
Next, s 85(1) of the Constitution Act 1975 provides that the Court ‘shall be the superior Court of Victoria with unlimited jurisdiction’; and s 85(3) makes clear that the Court ‘has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986’. Immediately before the commencement of the Supreme Court Act 1986 (on 1 January 1987), s 85(2) of the Constitution Act 1975 provided that:
The Court and the Judges of the Court shall have and may exercise such jurisdictions powers and authorities as were had and exercised by any of the superior Courts in England or the judges thereof or by the Lord High Chancellor of England …
R v Forbes; Ex parte Bevan[8] concerned the inherent powers of the Commonwealth Industrial Court, which was a superior court of record created by statute for limited purposes and upon powers implied by the Conciliation and Arbitration Act 1904-1970 (Cth) (‘the Act’). In that case, the High Court found that the Industrial Court had no power to make an order requiring the officers of a trade union to observe certain rules of the union. Having found that the impugned order was not authorised by s 141 of the Act, Menzies J observed that Courts of unlimited jurisdiction have ‘inherent jurisdiction’, which requires ‘no authorising provision’. He said:[9]
‘Inherent jurisdiction’ is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorising provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as ‘inherent jurisdiction’, which, as the name indicates, requires no authorising provision. Courts of unlimited jurisdiction have ‘inherent jurisdiction’.
[8](1972) 127 CLR 1 (‘Bevan’).
[9]Ibid 7 (emphasis added).
In Grassby v The Queen,[10] the High Court determined that a magistrate had no inherent power to order a stay of committal proceedings as an abuse of process. Dawson J drew a distinction between the inherent jurisdiction of a superior court of unlimited jurisdiction – as is this Court – and the implied powers reposing in inferior courts of limited jurisdiction created by statute. Having set out the observations of Menzies J from Bevan cited above, he observed:[11]
Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical. See Yale Law Journal, vol 57 (1947) 83, at p 85, cited by Jacob, ‘The Inherent Jurisdiction of the Court’, Current Legal Problems, vol 23 (1970) 23, at p 27. But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate’s court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.
[10](1989) 168 CLR 1.
[11]Ibid 16–17.
We are of the view that this Court’s power to make the order is within its inherent jurisdiction. It arises from the Court’s general responsibility for the administration of justice, flowing from its status as a superior court of unlimited jurisdiction. In discharging the general responsibility for the administration of justice, this Court exercises ‘the full plenitude of judicial power’, identified by reference to those powers ‘exercised by any of the superior Courts in England or the judges thereof or by the Lord High Chancellor of England’.
As to the inherent jurisdiction of superior Courts of England, Lord Devlin observed in Connelly v DPP,[12] that
the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court’s process is used fairly and conveniently by both sides.
[12][1964] AC 1254, 1347.
Moreover, with respect to the inherent jurisdiction of this country’s State Supreme Courts, in PT Bayan Resources v BCBC Singapore – a case which involved a consideration of the power of a State Supreme Court to make freezing orders in relation to a prospective judgment of a foreign court – it was observed:[13]
The Supreme Court of Western Australia, in common with other State Supreme Courts, is continued in existence[14] as a superior court of record[15] administering law and equity.[16] That status alone implies that it has inherent jurisdiction.[17]
‘Jurisdiction’ is a word of many meanings. The term ‘inherent jurisdiction’ has been described as ‘elusive’,[18] ‘uncertain’[19] and ‘slippery’.[20] The difficulty is minimised if the term is confined to its primary signification: to refer to the power inhering in a superior court of record administering law and equity to make orders of a particular description.[21] For present purposes, inherent jurisdiction can be used interchangeably with ‘inherent power’.[22]
And also:[23]
What, then, is the relevant scope of the inherent power of the Supreme Court?
There is no need here to attempt any novel or exhaustive exposition. It is well established by decisions of this Court that the inherent power of the Supreme Court of a State includes the power to make such orders as that Court may determine to be appropriate ‘to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction’.[24] And it has been noted more than once in this Court that a freezing order is ‘the paradigm example of an order to prevent the frustration of a court’s process’.[25]
[13](2015) 258 CLR 1, 17–18 [37]–[38] (French CJ, Kiefel, Bell, Gageler and Gordon JJ) (citations as in original; emphasis added) (‘PT Bayan Resources’).
[14]Section 6(1) of the Supreme Court Act.
[15]Section 6(2) of the Supreme Court Act.
[16]Section 16(1)(a) and (d) of the Supreme Court Act.
[17]Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268 at 280 [36]; Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 60 [40].
[18]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 60 [40], quoting Grassby v The Queen (1989) 168 CLR 1 at 16
[19]Batistatos v Roads and Traffıc Authority (NSW) (2006) 226 CLR 256 at 295 [122], quoting AJ Bekhor & Co Ltd v Bilton [1981] QB 923 at 953.
[20]Batistatos v Roads and Traffıc Authority (NSW) (2006) 226 CLR 256 at 263 [5].
[21]cf Lipohar v The Queen (1999) 200 CLR 485 at 516-517 [78]; Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 60 [40]
[22]cf Batistatos v Roads and Traffıc Authority (NSW) (2006) 226 CLR 256 at 264 [6].
[23]PT Bayan Resources, 18 [42]–[43] (citations as in original).
[24]Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623.
[25]Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 195 CLR 1 at 32 [35], quoted in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 400 [41].
As we have observed, s 318 of the CPA – which provides a mechanism to secure the attendance and examination of a witness who would have been a compellable witness at trial – is not a source of power for the order. But it is not – and does not by its terms purport to be – the sole repository of this Court’s powers to compel the attendance of witnesses. Indeed, the mere fact that neither s 318, nor any other statutory provision or rule, specifically authorises this Court to make an order compelling the attendance of a witness in the circumstances confronting the Court and the parties in this case, does not carry the implication that this Court’s powers are exhausted. That s 318 enables the Court in defined circumstances to deal with an issue in a particular way does not exclude the Court’s inherent power to deal with a similar (but distinct) issue in a different way.
In Browne v Commissioner for Railways, Jordan CJ made it clear that, if jurisdiction is conferred upon a court, but no procedural machinery has been provided, the court should exercise its jurisdiction by itself providing the necessary machinery. He said:[26]
So far as Courts are concerned, it has been held that if jurisdiction is conferred upon a court, it may and should exercise that jurisdiction; and if no procedural machinery has been provided, it is for the Court to provide such machinery as best it can: Regina v Justices of the Central Bailiwick, Ex McEvoy (7 VLR Law 90 at pp 93-4); In the Will of Todd (13 VLR 185 at p 189); A-G for Ontario v Daly ([1924] AC 1011 at p 1015). If it is provided by statute that an application may be made to a court within the time and in the manner and on the conditions directed by rules of court, this is regarded as creating a right in the applicant to make, and a duty in the Court to hear, the application, irrespectively of whether any rules have been made. In such a case, there is a power in the Court to prescribe conditions by rules, but until it does so, the Court must deal with applications as justice and common sense demands …
[26](1935) 36 SR (NSW) 21, 29.
To like effect, McInerney J said in Overton v Loukides[27] (albeit that the case did not involve a superior court’s inherent powers) that
where a statute directs a specific proceeding in any court the proceeding must be according to the practice of that court, but where there is no practice specially applicable it is competent for the tribunal to deal with the matter as justice and common sense alike call for.
[27][1970] VR 462, 465.
In our view, there can be no doubt that, notwithstanding the absence of a specific statutory source of power, this Court – as a superior court of unlimited jurisdiction – has inherent power to order the attendance of witnesses. It has long been recognised that the power of a Court to secure the attendance of witnesses to testify (or to produce documents) is an essential adjunct to adjudication.[28] As Bryson J said in Danieletto v Khera:[29]
The power of superior courts by subpoena to order witnesses to attend and persons to produce documents has existed for centuries and is based on the inherent power of the Court, because power to compel attendance and production is necessary for the determination of the facts on which decisions are based and for the attainment of justice. There can be no effective proof of facts unless attendance and production can be compelled. The power of the Court to issue subpoenas is restated in Pt 37, r 2 of the Rules, but neither that rule nor the rules generally should be taken as the exclusive or exhaustive statement of the powers of the Court relating to subpoenas.
[28]Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, 82 (Brennan J).
[29][1985] 35 NSWLR 684, 686.

Alemu’s evidence will be necessary for the proper determination of the central issues in the applicant’s case. His attendance and examination will be key to the attainment of a just result. Being satisfied that it was within the Court’s jurisdiction to do so, we therefore made the order.

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[2022] VSCA 171

1 August 2022