Betts v The Queen

[2015] HCATrans 328

[2015] HCATrans 328

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S110 of 2015

B e t w e e n -

JOEL BETTS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 2015, AT 10.15 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR P.D. LANGE.  (instructed by Murphy’s Lawyers)

MR L.A. BABB, SC:   I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL J:   Mr Babb, given the background to this matter and the correspondence that has been exchanged, we would be assisted by hearing from you first.

MR BABB:   Thank you, your Honours.  Your Honours, in my submission, there was not error in this case.  When the court finds error and moves to the section 6(3) determination, it takes into account all the relevant material before it to redetermine the objective and subjective circumstances and determine the appropriate sentence in its own assessment.  Whether material that was not before the sentencing judge should be admitted into evidence and considered in that redetermination is determined by section 12(1) of the Criminal Appeal Act and that is at page 131 ‑ ‑ ‑

KIEFEL J:   Quite so, but the evidence was admitted initially by the Court of Criminal Appeal ‑ ‑ ‑

MR BABB:   It was.

KIEFEL J:   ‑ ‑ ‑ and it was conceded in written submissions, which is the reason we are asking you to address us first.

MR BABB:   Yes.

KIEFEL J:   It was clearly conceded in written submissions that the material was relevant and ought to have been taken into account.

MR BABB:   Yes.

KIEFEL J:   Speaking for myself, I am unpersuaded by the letter from the solicitor to suggest that it was not intended as a concession.

MR BABB:   Well, in any event, your Honour, I withdraw that concession.  The material was not properly admissible under the section 12(1)(c) test in that it was not necessary or expedient in the interests of justice to revisit that issue of the mental state of the prisoner at the time of sentencing, and what was necessary and expedient in the interests of justice was consideration of material changes since that sentencing and what had happened in his time in custody and thereafter.

KIEFEL J:   So you are saying that the evidence of the two reports that was sought to be relied upon either dealt with the same facts that had been the subject of finding before the sentencing judge, or was it in any way contrary to those findings?

MR BABB:   It was contrary, your Honour, and in a key way.  It was traversing what were the agreed facts before the sentencing judge and this is a key area where section 6(3) would never allow material in.  For example, the history given to the psychologist and the psychiatrist was quite different from ‑ ‑ ‑

KIEFEL J:   The difficulty from our point of view is that the Court of Criminal Appeal has not gone into this in any way at all.

MR BABB:   No, it has not.

KIEFEL J:   It is quite a different thing to say that there is a contradiction involved in agreed facts, but we have no findings in relation to that.  All we have are a couple of sentences which suggest that you should not have a second bite at the cherry.

MR BABB:   Yes, and it is ‑ ‑ ‑

BELL J:   One of the differences, as it seems to me in light of the submissions you are developing now, Mr Babb, in contrast to paragraph 3.47 of your submissions is, as I understand the applicant’s contention, it is that once error is identified on the question of resentence, the Court of Criminal Appeal engages in a task that may include the receipt of evidence touching on matters that were the subject of findings before the trial judge that have not been set aside on appeal. 

I think the court in this case received the affidavit material on what was described as the usual basis and then there seems to be a difference in view perhaps about what is the usual basis and what, if any, limitation was placed on that.  Now, the argument that is put against you is there was material that was before the court calling into question some of the factual findings that the trial judge made.  What is the prosecution’s submission in response to the question of what was the usual basis and what is the justification for any restriction placed on the reception of the material?

MR BABB:   Your Honour, my submission in relation to the usual basis is that that is a term that is fairly commonly understood and that it really goes to this evidence should be admitted only in the event that error is found and that it is not relevant – does not go to the finding of error, but if error is found then it can go in and be taken into account.

GAGELER J:   Well, here error was found.

KIEFEL J:   The court admitted it on the basis that it would take it into account, then it did not.

MR BABB:   No, it did not, and there was not a full exposition of why.

KIEFEL J:   The Crown did not challenge the relevance of the evidence on if there was going to be a fresh resentencing.

MR BABB:   No.  So really the issue that I seek to avoid and what I perceived was submitted on behalf of the applicant is a suggestion that it is a resentencing and any relevant material would go in and be considered and there is a threshold that has to be passed.  Relevance is simply not enough for the material to be admitted.  It must pass – it must in the discretion of the court be considered to be necessary or expedient in the interests of justice and in this case this additional material really did not advance the case in any real way.

GAGELER J:   So you are saying it should not have been admitted at all?

MR BABB:   It should not have been admitted at all – well, it should have been admitted.  It covered two different areas.  It covered what had happened to the prisoner post his admission into custody and the court actually took it into account in that regard.  If you look at ‑ ‑ ‑

BELL J:   In that respect, the court was acting conformably with its decision in Douar by way of illustration.

MR BABB:   Yes.

BELL J:   That is, the evidence was received.  In the event error was found, it was relevant to the question of resentencing to look at material touching on what had happened to the applicant in the period after sentence, but not as opening up the facts upon which, to the extent they were not successfully challenged on appeal, the primary judge had found.

MR BABB:   That is a consistent application of the admission of evidence and often a rejection of evidence where it is traversing matters that were before the sentencing court.

BELL J:   Well, as I understand the applicant’s submissions, that limitation is not an appropriate one.  I think that is the issue that is sought to be ventilated.

MR BABB:   Yes.  In my submission, that limitation is set out in section 12 and it is at 131 of the application book “necessary . . . in the interests of justice”.

GAGELER J:   There could be two views on that.

MR BABB:   Yes.  It is an assessment in a case‑by‑case scenario and in some instances that will include material that predates the sentencing exercise.  That is just not this case.  Dr Westmore was asked to give an initial report, asked to revisit his report in relation to drug‑induced psychosis, and maintained his consistent opinion throughout. 

Dr Nielssen’s report was based on facts that were demonstrably inconsistent with the agreed facts and he said that the attack took place over 45 seconds.  It was at least 45 minutes that the 28 stab wounds were inflicted and that the other injuries were inflicted.  In this case the admission of that report was not necessary in the interests of justice, and that is really where the court has landed, but it should have exposed its reasoning and ‑ ‑ ‑

KIEFEL J:   How should we approach the matter then, given that the reasoning has not been exposed?  Do we determine this question for ourselves at a special leave ‑ ‑ ‑

MR BABB:   In my submission, your Honours could; there is sufficient material.

KIEFEL J:   What course do you submit we should take?

MR BABB:   Well, in my submission, the granting of leave is of no utility in this case.  There is not really a special leave point there and ‑ ‑ ‑

BELL J:   Well, save that there does appear to be a – you are urging a view consistent with a long line of authority in the New South Wales Court of Criminal Appeal that the evidence tendered on the usual basis is confined to post‑sentence conduct, whereas the applicant is arguing in light of Kentwell that if the court is engaged in resentencing it is open to consider evidence that is tendered in the event error is found that goes to causation or other matters that were the subject of unchallenged factual findings before the judge on different evidence.

MR BABB:   If there was material that was necessary in the interests of justice this may be the vehicle – even Kentwell, your Honour, in looking at what was said at paragraph 43 of Kentwell:

After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence.

BELL J:   I do not think Kentwell really addressed this issue but ‑ ‑ ‑

MR BABB:   No.

KIEFEL J:   But do you suggest – you referred earlier to the fact that the findings made by the sentencing judge were based upon an agreed set of facts.

MR BABB:   Yes.

KIEFEL J:   Do you say that therefore, regardless of the wider question that might be open post‑Kentwell, that this is an unsuitable vehicle?

MR BABB:   I do.  This is a sentence, there were agreed facts and traversing them by any report based on an inconsistent history with the agreed facts meant that it was not necessary in the interests of justice that that material be considered.  They are my submissions.

KIEFEL J:   Thank you, Mr Babb.  Yes, Mr Odgers.

MR ODGERS:   Just in relation to that question of conflict with the agreed facts, we do not accept that there was any conflict.  The only aspect where this might be a potential problem is that Dr Nielssen referred to the 45 seconds point, but he did not indicate that he placed any weight on that.  So, to a very large extent, almost entirely - and I would say really entirely - there is no conflict between the new material and the agreed facts. 

There is certainly a conflict between the new material and the findings made by the sentencing judge and there is no doubt that he found that the offence was planned, he found that the long history of child sexual abuse had no causal connection with the offending, he found that the drugs had no connection with the offending, he found that there were no psychiatric problems.

The new material really challenges all of that.  It tends to a conclusion that it was not planned, that it was spontaneous.  It supports a conclusion that he was suffering a psychiatric illness at the time of the offending.  It supports a conclusion of a link between the child sexual abuse and the offending.  So there is no doubt this material ‑ ‑ ‑

KIEFEL J:   But was the Court of Criminal Appeal correct to say really it is traversing the same issues over again, that there is nothing really truly new in what has been put forward?

MR ODGERS:   The purpose – the reliance on the new evidence was to go to the circumstances of the offending.

KIEFEL J:   But that had already been gone into.

MR ODGERS:   Correct.

KIEFEL J:   It was the connection between the abuse and drug use and the offence and the offending.

MR ODGERS:   Correct, and so the argument is post‑Kentwell that the court is now moving to a stage of reconsidering for itself the exercise of the sentencing discretion and the argument is in those circumstances it is resentencing as if another judge was doing it from the beginning again.  The argument then is that there is evidence highly relevant to a critical aspect of that sentencing, which is the facts surrounding it, the causes of it and that this material which was allowed in on the usual basis which usually means, as my friend the Director has conceded, that it may be received on resentencing.  So at resentencing it has been received and it goes to critical issues relating to culpability.

BELL J:   I must say, Mr Odgers, I had understood the usual basis also to carry with it that notion of evidence that reveals matters of relevance that have occurred since the sentencing in the event that error is disclosed will be taken into account on resentencing.  It is, I think, a step further that you seek to go, which is to reopen the unchallenged factual findings that formed the basis of the sentencing judge’s determination.

MR ODGERS:   When your Honour says “unchallenged”, unchallenged in the Court of Criminal Appeal on the basis of the evidence that was before the sentencing judge?

BELL J:   Yes, indeed.  So if one looks at the reverse of this, as it were, a case such as Carroll on a Crown appeal, the error the Court of Criminal Appeal made was to substitute its view of the facts for that of the trial judge absent clear error on the part of the trial judge.

MR ODGERS:   Yes.  Your Honours, whatever is understood by the words “on the usual basis” perhaps is not the core of this application.

BELL J:   Yes.

MR ODGERS:   Perhaps the core of it is, post‑Kentwell, what does it mean to say that the court proceeds to resentence and what can it appropriately do in those circumstances, and my friend refers to section 12 and I am content to accept that that conveys a general test, whether or not it is expedient in the interests of justice.

KIEFEL J:   Well, it might do a little more than that.  It might suggest that the appeal court is not obliged to take into – it certainly suggests it is not obliged to.  It provides a discretion.

MR ODGERS:   That might be so, your Honour, in which case the point we make is that the court has not really provided any – it has just simply adopted a simple proposition, it could have been produced below, end of story.

KIEFEL J:   But it is not so difficult to realise that although the reasoning leading to the conclusion is somewhat deficient that the court did not think it was necessary in the interests of justice to go over the same facts again.  That is the essence of what the court was saying although, as I say, it could have expanded somewhat on that.

MR ODGERS:   What it said at paragraph 47 of the judgment is that the evidence is inadmissible ‑ ‑ ‑

KIEFEL J:   Well, that may not have been strictly correct.  It was in but it is obviously not going to – maybe it was a second ruling of – that particular evidence was inadmissible, but the balance of the evidence that it went on to take into account as relevant was.

MR ODGERS:   Yes, I appreciate that.

KIEFEL J:   So it was looking again at the question of admissibility and splitting off that area as inadmissible.

MR ODGERS:   I think the evidence was used for one purpose but not for another, and I accept that.

KIEFEL J:   Well, there was more than one aspect to the evidence.

MR ODGERS:   I understand that, your Honour.  But the reasoning appears in the next sentence, at the bottom of application book 114, which is that:

an appeal does not provide an opportunity for a second bite of those issues.

That seems to be the reasoning and there does not seem really, with respect, to be any kind of consideration of discretionary considerations which would bear ‑ ‑ ‑

KIEFEL J:   So on what basis are you really - would you put the appeal?  Is it on the basis that this is a miscarriage of a discretion, or would you argue that the appeal court is obliged to take the evidence into account?

MR ODGERS:   We advance both propositions.  We do not accept that section 12(1) circumscribes the powers of the Court of Criminal Appeal at the stage of resentencing.  So we would say that at the stage of resentencing the powers of any sentencing court would operate in those circumstances but, in the alternative, that section 12(1) does confer a broad discretion and it should be exercised in the interests of justice and it is not apparent that the discretion – we would say the discretion was miscarried as apparent from what is said in the reasons of the Court of Criminal Appeal.

There should at the very least have been an – it appears that what happened was that the evidence is tendered, the court – there is no objection on “the usual basis” and then the court hands down its decision.  I am not sure that there was a great deal of opportunity for the defence to – or for the appellant or the applicant in the sentencing proceedings to deal with all of the issues that clearly arise here, which is what is the relevance of this material, how does it go to bear on the critical objective issues?

BELL J:   Has there been a more recent decision post‑Douar where I think the court went into this in some detail and on my recollection confined evidence relevant to resentencing to evidence that had occurred post‑sentence because if there is not then the reasoning in paragraph 47 is more readily understood.

MR ODGERS:   That decision, I think, was pre‑Kentwell, your Honour.

BELL J:   Yes.

MR ODGERS:   Yes, I think ‑ ‑ ‑

BELL J:   But Kentwell does not itself deal with this.  I appreciate the argument that you seek to make, Mr Odgers, which is that there is a logical ‑ ‑ ‑

MR ODGERS:   We say the logic flows – Kentwell made unambiguously clear that the sentencing discretion is re‑exercised and that you start again, in effect.  That raises important questions about how you proceed, but we would say that uncertainty or propositions that have been advanced under perhaps a different view of what occurred in a 6(3) situation are of limited

assistance.  We would say at the very least there should have been a careful – the court should have given the applicant an opportunity to explain why it was expedient in the interests of justice to receive this material to go to the core questions.

I mean, I would just remind your Honours this was a case where a very serious offence occurred out of the blue by a person who on the face of it is of prior good character and there was no explanation.  It was the absence of explanation which led his Honour to form very serious – reach very adverse findings about what his motivation was, what his planning was, and so on.  It was of critical importance to his sentencing.  So perhaps the original sentencing was not handled as well as it could have been.

The point is that at the time of the Court of Criminal Appeal considering the matter, there was new material available which cast a very different light on what had happened and it was received by the court to some extent and if the court was going to say, well, it is not in the interests of justice to receive it, then we would say that that should have been fully ventilated and appropriately dealt with, and was not.

So, we would say that there are three reasons why there are problems here.  One is we say it is not limited to 12(1), we say that 12(1) gives a broad discretion and that discretion appears to have miscarried, and we say that in procedural terms the matter was not dealt with as it should have been.  So, we would say that this is a suitable case for sending it back to the Court of Criminal Appeal to reconsider the issue appropriately at the very least.  If it please the Court.

KIEFEL J:   The Court will adjourn for a short period to consider the matter.

AT 10.40 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.43 AM:

KIEFEL J:   There will be a grant of special leave in this matter.  How long do you consider the matter would take, Mr Odgers?

MR ODGERS:   Half a day perhaps, your Honour.

KIEFEL J:   Any more than half a day?

MR ODGERS:   I would have thought not.

MR BABB:   I would agree with that.

KIEFEL J:   Half a day?

MR ODGERS:   Yes.

KIEFEL J:   Thank you.  Could you please have your instructing solicitors obtain the set of directions from the Deputy Registrar before you leave?  Thank you.

MR ODGERS:   Thank you, your Honour.

KIEFEL J:   The Court will now adjourn to reconstitute.

AT 10.44 AM THE MATTER WAS CONCLUDED