Bucca v The Queen

[2018] HCATrans 262

[2018] HCATrans 262

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A28 of 2018

B e t w e e n -

JASON LUKE BUCCA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 DECEMBER 2018, AT 10.07 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR S.A. McDONALD, for the applicant.  (instructed by Northeast Lawyers)

MR I.D. PRESS, SC:   May it please the Court, I appear with MS J. LITSTER for the respondent.  (instructed by Director of Public Prosecutions (SA))

KIEFEL CJ:   Yes, Mrs Shaw.

MS SHAW:   The point of principle that arises on this application is whether, in a case where two accused, B and C, who are tried together on the basis that B shot the victim and C was a party to a joint enterprise with B, and where the evidence admissible in the case against C is stronger than the evidence admissible in the case against B, is it an error of law for the trial judge to direct the jury that in order to find C guilty of murder or manslaughter they must first find B guilty of murder?  This was referred to in the court below as the impugned direction.

GAGELER J:   Mrs Shaw, are you saying that the problem is that there was an error of law in the direction as distinct from a miscarriage of justice?

MS SHAW:   Yes.  We are submitting that there is an error of law that constitutes a miscarriage of justice in the case but we do submit ‑ ‑ ‑

GAGELER J:   What precisely is the error of law?

MS SHAW:   The error of law is the direction to the jury that they must find Mr Bucca guilty before they can find Ms Castle guilty of murder or manslaughter.

GAGELER J:   How is that wrong in law?

MS SHAW:   That is wrong in law in that it undermines the principle that the cases of each accused must be considered separately and, secondly, it requires the jury to find in the case against Ms Castle that Mr Bucca is the shooter on the basis of the evidence in the case against Mr Bucca, not in the case against Ms Castle.  So that, in our respectful submission, is an error of law.  The finding that Mr Bucca was the shooter in the case against Ms Castle had to be on the basis of the evidence against Ms Castle, not on the basis of a finding in the case against Mr Bucca. 

The consequence, that is the consequence of that particular direction, was first of all that it withdrew from the jury the option or the alternative combination of verdicts that the jury could find Mr Bucca not guilty of murder and Ms Castle guilty of murder.

KIEFEL CJ:   Was a similar direction made at the first trial, Mrs Shaw?

MS SHAW:   It was, your Honour, and, with respect, there is an explanation for that in that at the first trial it is correct to say that there was a single issue as to the identity of the shooter because Mr Bucca did not give evidence and the evidence of Ms Castle was admissible against him.  However, at the second trial, Ms Castle’s evidence was not admissible against him and the strength of the Crown case against Ms Castle was her admissions that she was present at the scene of the shooting and, in addition, part of the history of the way in which the deceased came to be at the car wash were messages from her which the Crown relied on as luring him to the car wash and importantly a message by her purportedly to Mr McDonald’s phone that after the shooting, which the Crown relied on as in essence a false alibi, that she was essentially going to meet him and in addition ‑ ‑ ‑

KIEFEL CJ:   Mrs Shaw, to what extent does your case depend upon the strength of the case against Ms Castle?

MS SHAW:   The specific prejudice to Mr Bucca was the case against Ms Castle was strong, the case against him was weak because the evidence that was admissible against Ms Castle in relation to the text message and in relation to another text message, No 165, where Mr McDonald had texted – the deceased had texted Ms Castle that he had feared Jas – which was said to be Mr Bucca – would put a bullet in him was also inadmissible against Mr Bucca.

So, in essence, the case against Mr Bucca, when he had given evidence in this trial and he had explained the circumstantial evidence against him, very much depended upon the jury rejecting his evidence on oath and finding, on the circumstantial evidence, that he must have been there.  But in addition to that it was an important plank of Mr Bucca’s case that there was a significant body of evidence that pointed to the alternative hypothesis that the shooter was Mr Gange and that effectively was his evidence as an hypothesis because he said that he was not at the car wash.

So the complaint of counsel below at trial about this direction immediately after the draft direction was provided to counsel was that it tied the fates of the two accused together in a way that would essentially put pressure on the jury if they wanted to convict Ms Castle.

KIEFEL CJ:   It was, however, logically correct, was it not?

MS SHAW:   In our respectful submission, not logically correct in that the direction was that the finding of who the shooter was was to be based on a finding in the case of Mr Bucca.  It was not based on a finding in the case against Ms Castle.  So it was incorrect logically.  Logically, the finding in the case against Mr Bucca was not the basis upon which the jury should determine who the shooter was in the case against Ms Castle. 

It was a benefit to Ms Castle.  It was an advantage because it meant in the case where the Crown case was weaker, to prove the identity of the shooter, namely in Mr Bucca’s case, Ms Castle could potentially get the benefit of the jury being bound by the finding in Mr Bucca’s case because if they were not satisfied it would definitely be an acquittal.

So, in effect, we submit that this is prejudicial for the reasons that this Court outlined in Darby (1982) 148 CLR 668 which we have referred to in the application book and it was in the context – at page 236 of the application book we have set out the relevant passage - and that was a case of conspiracy and the Court said that a direction that has the consequence that the jury must either acquit them both or convict them both we submit is an error of law, but the consequence of that is explained, we submit, appropriately to this case when their Honours go on to say:

But it may be worse than that.  Such a direction might well result in injus[t]ice to one accused.  In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B.

That, we submit, is the error that – or the prejudice that arises here in respect of Mr Bucca, that if the jury came to a position that they considered that the evidence against Ms Castle that indicated in the case against her that she was guilty but this direction from the trial judge required them to acquit her if they were indeed going to acquit Mr Bucca meant that it might therefore make it practically impossible to sustain an act on a reasonable doubt on the evidence admissible against Mr Bucca.

So, in our respectful submission, the failure of the directions to distinguish between the evidence in the case against Castle and the evidence in the case against the applicant, in terms of the approach of the jury to who was the – the finding as to who was the shooter had the consequence that it was a prerequisite to convicting Ms Castle that they had to return a verdict of guilty in relation to Mr Bucca.  The error is to withdraw from the jury the possibility of convicting Castle while acquitting Mr Bucca. 

That prejudice of tying their fates is the prejudice about which the Court speaks in Darby and, in our respectful submission, it has some analogy with the way in which this Court has considered in Gilbert’s Case and the relevant choices of verdicts that may affect the decision as to what the jury – how they approached their ultimate decision.

So here we submit the relevant choice that is presented to them, which is an erroneous choice, is between a combination of verdicts.  What is withdrawn is the combination that sees Castle convicted and the applicant acquitted.  Where that was the combination of verdicts which assumed the jury found Ms Castle guilty precisely reflected the case that was put by the applicant’s counsel and he asked the jury to entertain.  In our respectful submission what the passage we have identified in Darby’s Case demonstrates is that this Court has recognised that that is a very real risk.

We submit that the prejudice, in particular, that arose because of the difference in the evidence against each meant that the jury were left with – faced with an erroneous choice.  They either convicted Mr Bucca and only then could convict Ms Castle or they acquitted both and that latter proposition is one that we submit, as Darby’s Case explains, they might well have found unpalatable.  Therefore, in our respectful submission, the court below – if I can take the Court to application book 165 at paragraph 78 where the court below held that the directions about which we have complained:

did not deny a separate consideration by the jury of the case against each accused.  The directions did not blur the lines between separate considerations of each case.  Bearing in mind the way the case was presented and the issues joined, the directions merely stated the obvious concerning Mr Bucca.  If he was acquitted, so too did Ms Castle have to be acquitted. 

It is that error, we submit, by the court below and by the Court of Appeal which is an error – an important question of principle because the defence case fundamentally was that the jury were entitled to find that Mr Bucca was not guilty but find that Ms Castle was indeed in a joint enterprise with the shooter who could be either Bucca or Gange.  So what the Court of Appeal found at page 165, in particular in 78:

Mr Bucca was not prejudiced by the impugned direction.

In our respectful submission, plainly there was prejudice because the jury were faced with the prospect that if they acquitted Mr Bucca then they would have to acquit Ms Castle and, secondly, it meant that the finding in relation to the shooter was presented to the jury in essence as a single issue that depended on the case against Mr Bucca. 

In our respectful submission, where this was a case that the evidence was so disparate between the accused, it was an erroneous direction to require the finding of who was the shooter to be dependent solely on the way in which the jury approached the case against Mr Bucca and undermined the fundamental principle that each accused, although jointly tried, is indeed having a separate trial being heard at the same time.  He is entitled to the jury’s consideration of the evidence solely against him without having to have regard to the result of the jury’s verdicts in relation to a co‑accused.

We submit if we are right that this is an error of law and/or in the nature of a miscarriage of justice, that is the direction that was given, then the Court of Appeal never considered the proviso and, in our respectful submission, it is a fundamental error to link the verdicts together in the way that the trial judge did incorrectly and, in our respectful submission, in any case it is a case where the proviso could not apply because of the prejudice that is indicated in Darby and for the reasons that this Court held in the first hearing relating to the court being constrained by the natural limitations of evidence – consideration of the oral evidence below.  If the Court pleases.

KIEFEL CJ:   Thank you.  Mr Press, we do not need to trouble you in this matter.

We consider that there are insufficient prospects of success to warrant a grant of special leave.  Special leave is refused.

The Court will adjourn to reconstitute.

AT 10.25 AM THE MATTER WAS CONCLUDED