Ban v The State of Western Australia

[2020] HCATrans 222

[2020] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P34 of 2020

B e t w e e n -

AH PING BAN

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 DECEMBER 2020, AT 12.20 PM

Copyright in the High Court of Australia

KIEFEL CJ:   MR S. VANDONGEN, SC appears for the applicant.  (instructed by Mark Andrews Legal Pty Ltd) 

MS A.L. FORRESTER, SC appears with MS K.C. COOK for the State of Western Australia.  (instructed by Office of The Director of Public Prosecutions (WA))

KIEFEL CJ:   Yes, Mr Vandongen.

MR VANDONGEN:   Thank you, your Honours.  Can I just indicate at the outset I am finding it a little difficult to hear your Honour.  It is breaking up a little bit on occasion.

KIEFEL CJ:   Would you – is it still breaking up now?

MR VANDONGEN:   It is much better.  Thank you, your Honour.

KIEFEL CJ:   We will both try to speak up a little, but please feel free to let us know if there is any problem with the audio.

MR VANDONGEN:   I will do so, thank you, your Honour.  Your Honours, the issues raised by both proposed grounds of appeal, in my submission, establish that the interests of the administration of justice in this particular case require consideration of the decision of the court below.  The first proposed ground of appeal concerns what, in my submission, was a failure to give a direction to the jury that was required in order to avoid the risk of a miscarriage of justice.

The second proposed ground of appeal is concerned with the Court of Appeal’s approach to and conclusions reached about the question of whether the verdict of guilty of murder was unreasonable or could not be supported.  I propose dealing with the proposed grounds of appeal in the order in which they appear. 

Turning then to proposed ground of appeal number 1, can I ask your Honours to take up the application book, page 229, which is the starting point of the submissions that I want to make ultimately about proposed ground of appeal 1.  The starting point appears at paragraph 319 of the majority’s judgment at page 229.  It is an acceptance by the majority, and indeed an acceptance by Justice Mazza which was expressed at paragraph 377, that it was open to the jury in this case to find both the applicant and his co‑accused daughter, Ms Wan, not guilty of murder.  So even if they rejected positively the applicant’s evidence that he was not involved, it was still open and unanimously held by the Court of Appeal to the jury to find that both the applicant and his daughter, Ms Wan, were not guilty of the offence of murder.

The second point to be made in starting is what appears at paragraph 320 of the majority’s judgment on the same page.  That is an agreement by all of the court that:

If there was a real and not remote possibility that the jury might –

not have appreciated this, that is, the possibility of a not guilty verdict for both the applicant and his daughter, that they may have reasoned in a way that is referred to at paragraph 320, that is, having concluded that Ms Wan was not guilty of murder, reasoned that the appellant must therefore have been guilty.  Can I say that neither of those two propositions are challenged on this application, it would seem, by the respondent. 

Where the majority and Justice Mazza differed was whether the directions that were given as a whole alleviated that risk, such that there was no perceptible risk of a miscarriage of justice and essentially, the applicant’s position on the special leave application is that Justice of Appeal Mazza was correct, and that the majority erred and in particular, the applicant relies upon what Justice Mazza said at paragraphs 381 through to 389, at application book 244. 

Before dealing with the directions, because the critical issue on the special leave application is whether the directions as a whole alleviated the risk, it is necessary to identify the risk or the risks that arose in this case.  There were three ways in which the risk that the jury may reason in an impermissible way arose.  The first is, and this is really paraphrasing what Justice Mazza found, that the trial judge repeatedly told the jury that the paramount issue was:

‘whodunit?’ or ‘who did it?’.

That was a particularly important recitation of the issue for the jury in circumstances in which the cases for both appellant and Ms Wan was one of a cut‑throat defence, suggesting ‑ - -

KIEFEL CJ:   Well, that partly explains the direction, does it not, because the case of each – I mean, directions are given in summing‑up by a judge on the issues as ventilated by the parties not just by reference to the possibilities of offence, so here there was not – the issue that had been raised by the parties, by each of them was that the other did it.

MR VANDONGEN:   That is right.

KIEFEL CJ:   So, you cannot really say, can you, that his Honour the trial judge was inaccurate in saying that the issue in this particular case was which one of them did it, so long as his Honour identified that there had to be separate consideration in relation to each person.

MR VANDONGEN:   I do not take issue with his Honour’s identification of the issue or that it was in error for him to do so but his characterisation of the issues for the jury to determine as being one of “whodunit”, coupled with two other risks that I will come to in a moment, gave rise to the risk that the jury would have or may have failed to appreciate that it was as the whole of the court below recognised open to the jury, nonetheless, to find both of the applicant and Ms Wan not guilty.  That is merely the first risk or first basis upon which we say the risk arose here.

KIEFEL CJ:   One of the matters that appears to have influenced the majority in the Court of Appeal was the trail document given to the jury which clarified the position at least to the extent that it focused the jury on considering the circumstances of each of the accused.

MR VANDONGEN:   Yes, there is no question that they were asked or directed to consider the cases against both applicant and Ms Wan separately and to consider it based upon the evidence admissible in relation to both of their cases.  The vice that we say was not overcome by a direction that ought to have been given is that in considering that evidence and in reasoning to guilt there was a risk that the jury was influenced by a feeling, a requirement that if they were to find one of them not guilty, it necessarily led to the conclusion that the other one had to be guilty, so considering the evidence separately and considering the cases separately, in doing that and in reasoning in that way, being impermissibly influenced by the notion that they may not find one person not guilty – sorry, may not find both of the applicant and Ms Wan not guilty.

The other way that the risk arose in this case is in relation to what were known as the alternative scenarios that were put by the trial judge.  They appear at application book 227 at paragraph 312.  The first thing to note about those…..the “realistic possibilities” and his Honour the trial judge…..those realistic possibilities but then on request of Ms Wan’s counsel repeated it so that those “realistic possibilities” were given to the jury on two separate occasions with a break in between. 

When you look at those realistic possibilities and, contrary to the unchallenged conclusion of the majority that there was another realistic possibility, what is absent from those realistic possibilities is the possibility of a not guilty verdict for both the applicant and Ms Wan.  So coupled with the risk identified earlier, that is, a “whodunit” case, together with the setting out of only three realistic possibilities, and the absence of the realistic possibility identified by Justice Mazza, those two things gave rise to the risk that the jury might reason, in the course of separately considering the case of the applicant and the case against Ms Wan and the influence by those, the absence of the possibility of a not guilty verdict on both. 

The third risk is one that was identified by Justice Mazza, and that is at paragraph 385 of the decision below at application book 245.  This risk that…..could not be alleviated by directions that there need to be separate consideration of the evidence admissible against both the applicant and Ms Wan, that is a natural inclination on the part of the jury to think that there would be something inconsistent about reaching a verdict of not guilty for Mr Ban and a verdict of not guilty for Ms Wan, in circumstances in which there had, on anyone’s version, been a murder and a conclusion that both of them were not guilty meant a conclusion that whoever was responsible for it had got away with it. 

KIEFEL CJ:   Mr Vandongen, could you remind me, the reference to Justice Deane in Webb v The Queen at paragraph 386, did Webb involve a cut‑throat defence?

MR VANDONGEN:   I believe it did, your Honour, yes.

KIEFEL CJ:   His Honour was in dissent in that case.

MR VANDONGEN:   The issue in Webb v The Queen was predominantly to do with the question of bias on the part of the jury.

KIEFEL CJ:   Yes, that is right.

MR VANDONGEN:   There was also ‑ ‑ ‑ 

KIEFEL CJ:   So this did not deal with that aspect of it - his Honour’s dissent was on a different - not on that issue.

MR VANDONGEN:   Well, there was a separate aspect raised in Webb v the Queen which was concerned with separate trials, from memory.  His Honour Justice Mazza did not refer to Justice Deane’s observations as being binding, and he expressly noted, I think at footnote 376, that he was in dissent in the case, but the observations were not dependent upon his dissenting views.  Really what his Honour Justice Mazza was doing there, by referring to those observations, was to highlight the fact that the jury in this particular case may have thought that there was something inconsistent about acquitting both accused.  Now, the directions that were given in this case were referred to by the Court of Appeal in the majority at paragraph 321.

KIEFEL CJ:   I am sorry, what was the paragraph number?

MR VANDONGEN:   Paragraph 321, at page 230.

KIEFEL CJ:   Yes.

MR VANDONGEN:   Essentially, when one boils it down, the directions that their Honours said sufficiently removed the risk that they accepted existed was a direction that the jury need to consider the case against both accused separately, and on the evidence admissible against both of them.

KIEFEL CJ:   But the trail document in particular set out the conditions for guilt, of which the jury would have to be satisfied, and they were directed that they had to step through all of those conditions for a verdict of guilty.

MR VANDONGEN:   Yes, and I accept that, it is ‑ ‑ ‑ 

KIEFEL CJ:   Why would more be required?

MR VANDONGEN:   The stepping through of the process is particularly in terms of who was responsible for the killing of the deceased.  The potential for that stepping through of the process is to be influenced by having, in the back of one’s mind, the possibility of the potential inconsistency between having two people found not guilty.

So, it is not that they were not directed to take into account the evidence admissible against each accused separately, it is in the process of doing that that there was a danger that the jury was impermissibly influenced to reach a view about the applicant’s guilt beyond reasonable doubt – influenced by considerations of potential inconsistency and the other dangers and the other risks that his Honour Justice Mazza referred to, including the fact that the only practicable scenarios that they were directed existed did not include a scenario of not guilty for both the applicant, his daughter and his wife.  The directions that were given that were decisive in the majority’s view are set out at paragraph 297.  That is at application book page 222. 

KIEFEL CJ:   Could I just point out, Ms Forrester, we are getting quite a bit of interference and I think it might be coming from your microphone being rather loud page turning.

MS FORRESTER:   I am sorry.

KIEFEL CJ:   It is interrupting Mr Vandongen’s submissions a little.

MS FORRESTER:   My apologies, your Honour and Mr Vandongen.  We will mute our microphone until called upon.

KIEFEL CJ:   Yes.  It is rather loud.  I think that is part of the problem.  Thank you.  Yes, Mr Vandongen.

MR VANDONGEN:   Thank you, your Honour.  I was taking your Honours to paragraph 297 of the majority judgment, at application book 222, and that is where their Honours set out in full the separate trial consideration – or separate trial direction that the trial judge gave.  What is significant to note – and there are some errors in the transcription that had been the subject of an affidavit filed by the respondent in this case – is that the first two paragraphs deal with a separate consideration direction.

What immediately appears after that are directions that are designed to bring home to the jury the fact that findings in relation to one accused are not determinative of findings in relation to another accused.  What is missing from those directions – at the last two paragraphs on page 222 – is any direction that a finding of not guilty in relation to one of the accused determines a finding of not guilty or guilty in relation to the other accused.

KIEFEL CJ:   This is where the affidavit assumes some importance, does it not, because the affidavit of Ms Cook of the audio contains at least two references by his Honour, in the first of which he stresses that it is of some importance that if you find an accused not guilty on the evidence that does not necessarily mean the other is not guilty and the converse, if you find an accused guilty that does not mean the other must necessarily be guilty.  So, the latter in particular would be understood by the jury to – I would have thought to ‑ ‑ ‑

MR VANDONGEN:   But there is no direction that if you find one of the accused not guilty it necessarily follows that the other – in the context of a “whodunit”, in a cut‑throat defence in which the reasonable scenarios do not include not guilty of both, it does not include a direction that if you find one of the accused not guilty, it necessarily follows that the other accused is guilty.  That is the possibility – the risk that the Court of Appeal unanimously identified existed but said by majority it was overcome by the directions and, in my submission, the directions were not capable of overcoming that risk for the reasons that are set out ‑ ‑ ‑

KIEFEL CJ:   Mr Vandongen, in the time you have remaining, are you pursuing ground 2?

MR VANDONGEN:   I am pursuing ground 2 and I will make very brief submissions about it and given the time I intend focusing my submissions on the post‑offence conduct because that is critical to the outcome of that appeal – that ground of appeal.  The post‑offence conduct was dealt with by the majority at page 200 of the application book at paragraph 222. 

Consistently with the trial judge’s directions, they approached it on the basis that if the jury considered that the only reasonable inference from that post‑offence conduct was an involvement in the murder then it could be used in assessing whether or not there was involvement in the murder.

Now, the Court of Appeal used the post‑offence conduct of the applicant in support of its assessment of Ms Wan’s evidence and his Honour Justice Mazza used it independently of that as being sufficient to support the verdict of guilty.  The principal difficulty with that analysis by the majority in particular is that on the majority’s findings, the post‑offence conduct of Ms Wan was relatively, substantially identical to that of the applicant.

To make good that submission, if your Honours look at paragraphs 216, 217 and 218 of the majority’s judgment at pages 198 and 199, you will see there findings by the majority about the post‑offence conduct, which was disputed by Ms Wan, which are in essence findings that it was not open to the jury to find that Ms Wan did not engage in that post‑offence conduct.  The post‑offence conduct I am talking about here is essentially the purchase of a new mattress, and the disposal of the body.  In those circumstances – I note my time.  If I might just finish that submission?

KIEFEL CJ:   You may finish your submission, Mr Vandongen. 

MR VANDONGEN:   Thank you, your Honour.  In light of those findings, and in light of the fact that the post‑offence conduct of Ms Wan was substantially identical to that of Mr Ban, given that the jury found Ms Wan not guilty, they could not have used her post‑offence conduct as evidence of her guilt.  If they did not use her post‑offence conduct as evidence of her guilt, it was not open to use it as post‑offence conduct relevant to the guilt of Mr Ban.

If that is right, based upon the majority’s own findings, then it was not open to use that to support Ms Wan’s evidence, or to use it as independent evidence supportive of Mr Ban’s guilt.  Other than that, I rely upon my written submissions.

KIEFEL CJ:   Yes, thank you.  Yes, Ms Forrester.

MS FORRESTER:   Our screen has frozen, so we cannot see your Honours or my learned friend. 

KIEFEL CJ:   Ms Forrester, could you turn your microphone down a little?

MS FORRESTER:   We have tried that, your Honour, and we are not quite sure how to do it.

KIEFEL CJ:   You will just have to speak more quietly.

MS FORRESTER:  Yes, your Honour.  Is that better?

KIEFEL CJ:   Yes, thank you. 

MS FORRESTER:  Thank you, I apologise.  Your Honours, we cannot see you, but we are certainly happy to proceed.  Your Honours, there is no danger in this case of any impermissible reasoning on the part of the jury.  As has already been referred to, the question trail in this particular case was of great significance in terms of enabling the jury to be absolutely clear that the verdicts that they were to arrive at were to be arrived at independently and separately of each other.

It is put against the respondent that the scenarios outlined at one part of his Honour’s charge left out a particular scenario, that is, that both of the accused could be not guilty.  In that particular passage of his Honour’s charge, he was referring to the cases for the accused.  What his Honour did towards the end, and this appears at application book pages 85 to 86, his Honour later referred to the potential verdicts that were open, and his Honour had a verdict script which does not appear in the application book, but appears in that part of his Honour’s charge where he set out all of the available verdicts. 

Those were separate documents that were provided to the jury, that is, there was a verdict script in relation to each particular accused and of course in each particular case the verdicts of not guilty were set out for the members of the jury on those documents.  Having gone through that verdict script right at the end of his charge, his Honour then told the members of the jury again that it was important to consider the verdicts in relation to each accused separately. 

This jury were also told in – where his Honour was outlining the elements of the offence it is at that point that his Honour referred to or used the phrase “whodunit”.  In the cases in which his Honour used that terminology, his Honour was clarifying what the element of identity meant, that is, you have to have an accused “whodunit” - a person.  He then put the two elements together and directed the jury that a particular person did the act or omission and that act or omission caused the death of a person, that being the element.  His Honour did say:

That’s the paramount issue in this trial, whodunit, who was the person, and that is the issue that will trouble you –

He then said at application book pages 26 to 27:

So the question in this trial though is whether it was the accused, which accused or both accused who killed the deceased?

He went on to direct the members of the jury at 38:

You can convict an accused even if you do not know specifically what his or her role was so long as you’re satisfied that they’re either the principal or, if not the principal, they aided, enabled, procured or counselled and that you’re satisfied of the elements . . .  

Now, if the State can’t prove beyond a reasonable doubt that Mr Ban is either the principal or he aided, enabled, procured or counselled, then you must acquit. 

Then his Honour went through that same process in relation to Ms Wan.  It cannot be, or it should be, in our submission, recognised that the fact that Ms Wan was convicted of accessory after the fact of murder has some relevance in evaluating the risks in this particular case, because when his Honour was directing in relation to the offence of accessory after the fact of murder, his Honour directed the members of the jury that in order for someone to be convicted of that offence it must be firstly proved that:

someone other than the accused has committed the offence.

His Honour says this at 39:

the first element of being an accessory after the fact is you must have found that one of the accused has committed the offence of murder or manslaughter because you can’t be an accessory after the fact in this trial if someone has not been convicted. 

In our submission, therefore, before they could have convicted Ms Wan of that offence the jury had to be satisfied beyond reasonable doubt that the applicant was in fact guilty of murder. 

KIEFEL CJ:   Ms Forrester, I am sorry to interrupt you, but we appear to have lost at least the visual contact with Mr Vandongen.  Mr Vandongen, can you hear us?

MR VANDONGEN:   Yes, your Honours, I can hear you.  All of my screens have frozen.

KIEFEL CJ:   They are frozen.  Are you happy to proceed on the basis that you just hear us, or would you prefer us to stand down while we try to correct the visuals?

MR VANDONGEN:   I am happy to proceed, your Honour.

KIEFEL CJ:   Yes, thank you.  Yes, Ms Forrester.

MS FORRESTER:   Thank you, your Honour.  Your Honours, it is in light of all of those directions that his Honour went to the scenarios that were outlined and there were three.  It would have been in that context quite ridiculous, with respect, for his Honour to have directed the members of the jury that a scenario was that neither of them did it.  The whole issue in the trial was that at least one of them had done it and, indeed, it was the State case that both of them had done it.  In my submission, in that particular part of his Honour’s charge it would have been counterproductive to refer to a scenario that neither of them did it.

His Honour dealt with the prospect that a verdict of not guilty as against both accused was a possibility in the verdict script, and it was the last thing, in effect, that the members of the jury heard before they retired to deliberate.  There was different evidence as against both of the accused at trial.  It is noted that the applicant admitted offering to take the blame for this particular killing, on his own evidence, although he did say that he was going to say it was an accident and he later claimed that he offered to take that blame in order to protect his daughter, Ms Wan.

There was also, in our submission, more extensive post‑offence conduct on the part of the applicant than Ms Wan.  That is contrary, of course, to the submissions that are made on the part of the applicant.  It was necessary for the jury to find that the killing occurred after the arrival of the applicant in Perth and it was accordingly – I am sorry; I will start that again.  It was a necessary part of the finding of the jury that the killing occurred after 30 June 2020 and they were instructed very clearly that they could not be satisfied of the applicant’s guilt unless they found that fact beyond reasonable doubt.

As the Court of Appeal later found, once the members of the jury had concluded that the killing occurred after 30 June 2020, it was much more likely that both the applicant and Ms Wan were involved in the killing than any other particular scenario. 

In terms of the State case which was, of course, that they both were involved in killing, one scenario that – the most likely scenario on the basis of the verdict that they were delivered, of course, is that they simply were not satisfied beyond reasonable doubt in relation to Ms Wan’s guilt of the primary offence of murder. 

The verdict of guilty of accessory after the fact to murder was contrary to Ms Wan’s case.  She claimed that she at most was guilty of accessory after the fact to manslaughter.  It necessarily results from that verdict that the jury properly evaluated Ms Wan’s evidence and made findings in relation to her credibility as appropriate to the extent that she was more involved – she certainly had greater knowledge of the facts and circumstances than she had given evidence of. 

Ultimately, however, your Honours, it was a matter for the members of the jury to assess all of the evidence.  Having been immersed in a two‑and‑a‑half‑week trial, it is our submission there is no prospect that the members of the jury were under any misapprehension as to the available verdicts or possibility that ultimately neither of the accused could be proved guilty of the offence of murder. 

The fact that they found that one of them could be found guilty of that offence is entirely consistent with the evidence and, in our submission, it was if at all a possibility, an entirely remote one, and not subjectively open on – I apologise, I will start that again.  It is simply not open in the circumstances of this particular trial. 

There is perhaps little that I can add to my submissions in relation to ground 1, your Honours, except to say that the fact that very experienced trial counsel in each case did not identify any of the dangers which are now said to have been inherent in the way the case was run.  It is a matter, in our submission, that counts against a finding that there was an acceptable risk. 

Can I move to, your Honours, the second ground in relation to the unreasonable verdict.  The manner in which the Court of Appeal considered that ground in the context of this case is, in our submission, unimpeachable.  The fact is that by the time that the jury came to consider it, the State case was supplemented by the evidence of Ms Wan.  The State case did not rely upon any acceptance of her evidence but it having been given, the jury was entitled to consider it as it saw fit.  In combination, with the applicant’s post‑offence conduct, evidence of ‑ ‑ ‑

KIEFEL CJ:   I take it that it is your submission that the jury’s verdict would have necessarily involved an acceptance of Ms Wan’s evidence?

MS FORRESTER:   …..

KIEFEL CJ:   The matter raised against that possibility, namely, that there was no use of credit card, mobile phones, did not require a rejection of her evidence.

MS FORRESTER:   That is correct, your Honour, and that is exactly as the Court of Appeal found.

KIEFEL CJ:   Yes.

MS FORRESTER:   In our submission, the applicant overemphasises those features and the Court of Appeal set out the reasons why, singularly and in combination, they did not require a rejection of the State case as a whole.  The fact that Ms Wan’s evidence is put, as against the respondent, to suggest that the jury must have had a doubt in this particular case is the basis upon which the Court of Appeal considered that particular issue.  But, as a whole, all of those matters were not such as either – having regard to Ms Wan’s evidence or without it – did not cause the jury or did not require that the jury must have had a reasonable doubt in relation to this case.

KIEFEL CJ:   Ms Forrester, we do not need to hear from you any further in relation to this ground.

MS FORRESTER:   I am grateful, your Honour.  Those are the State’s submissions.

KIEFEL CJ:   Thank you.  Mr Vandongen, do you have anything in response?

MR VANDONGEN:   Yes, thank you, your Honours.  In relation to that last point, if your Honours look at page 194 of the application book, at paragraph 199, in the last paragraph at line 20, the words:

demand a rejection of Ms Wan’s evidence –

appear.  In writing, we have complained about that characterisation of the task that was required to be undertaken.  It was not a question, in our submission, of whether or not there was a demand that her evidence be rejected.  The question was whether or not those matters – together or in combination – by themselves, or in combination – demanded a finding that there had been a failure to prove guilt beyond a reasonable doubt.

KIEFEL CJ:   Is that right, because, as the respondent points out, the two defences were diametrically opposed?  The jury could not accept both of them.  There had to be an acceptance of one or other and Ms Wan’s evidence was clearly in the spotlight.

MR VANDONGEN:   Yes, but in terms of the approach to an “unreasonable and cannot be supported” ground, the question of whether or not the jury must have had a reasonable doubt depended upon whether or not the factors that were relied upon demanded a conclusion that the jury must have had a reasonable doubt about her evidence, not necessarily a complete rejection of her evidence, in my submission, applying the proper test.

Can I just deal very quickly with two matters raised in relation to ground 1.  The potential verdict script, in my submission, is irrelevant because it appeared at the end of the jury’s reasoning process.  The complaint made in ground 1 is concerned with the actual process leading to the conclusions that were referred to in the script.

The question of whether it was open to the jury to find both the applicant and Ms Wan not guilty, in my submission, was unanimously held by the jury to be one which was open – and I took your Honours to those references previously.  Justice Mazza at paragraph 377 in my submission put it best.  This is at page 243 of the application book, and at line 40, in support of the proposition, notwithstanding the elements of accessory after the fact, that it was open for the jury to find both applicant and Ms Wan not guilty resided in the uncertainty as to when Ms Chen died and on that basis:

it may not have been possible for it to be satisfied beyond reasonable doubt that either Ms Wan or the appellant killed Ms Chen.

Those are my submissions in reply, your Honour.

KIEFEL CJ:   Yes, thank you, Mr Vandongen.

In our view, there are insufficient prospects of success to warrant the grant of special leave and the interests of justice do not require a grant.  Special leave is refused.

The Court will now adjourn until 10.00 am on Monday, 1 February 2021 in Canberra.

AT 12.59 PM THE MATTER WAS CONCLUDED