Burrell v The Queen

[2008] HCATrans 221

[2008] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S141 of 2008
  No S142 of 2008

No S327 of 2007
  No S328 of 2007

B e t w e e n -

BRUCE BURRELL

Appellant

and

THE QUEEN

Respondent

GUMMOW ACJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 JUNE 2008, AT 10.20 AM

Copyright in the High Court of Australia

MR I.M. BARKER, QC:   If the Court pleases, I appear with MR D.G. DALTON, SC, for the appellant. (instructed by Legal Aid Commission of NSW)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS T.L. SMITH, for the respondent.  (instructed by the Solicitor for Public Prosecutions (NSW))

GUMMOW ACJ:   Yes, Mr Barker.  Can you just explain to us - there are four matters before us today.  You succeeded in getting grants for special leave on what I might call the Grierson point in two matters, as it were.

MR BARKER:   Yes.

GUMMOW ACJ:   That has produced two appeals, and the remaining grounds of special leave were referred in, and that explains the other two matters.

MR BARKER:   Yes.

KIRBY J:   Just before you start, Mr Barker, I should put on the record that I drew to the attention of the parties that my brother, Justice David Kirby, presided in a trial of the appellant and neither party had any objection to my participating in this appeal.

MR BARKER:   That was not the trial under appeal.

KIRBY J:   No, it was a different matter.

MR BARKER:   Your Honours, the practical result of all this is – we say this – that you should allow the appeal on grounds 2(a) and 2(b), which you will find in volume 10 at page ‑ ‑ ‑

GUMMOW ACJ:   Just looking at your statement of issues on the first page of your submission, does that sum it up?

MR BARKER:   Yes, your Honour.

GUMMOW ACJ:   So, the net result of success on the Grierson point, to put it that way, would be a remitter to the Court of Criminal Appeal?

MR BARKER:   Yes, your Honours.  You would go from the Grierson point to the grounds set out at page 4374 volume 10, which is the ground criticising the first judgment and that, we say, should be remitted to the Court of Criminal Appeal to a court differently constituted.

GUMMOW ACJ:   Well, whether we would actually say “differently constituted”, I suppose, is another matter, but the prudent course might be very apparent.

MR BARKER:   Yes, your Honour, because the allegation of apprehended bias remains very much alive.

GUMMOW ACJ:   Yes.  Now, I think we would be assisted if we heard you first on what I would call the Grierson points, then we heard the Solicitor and then we will consider what course we would take as to the outstanding special leave grounds that have been referred in.

MR BARKER:   Thank you, your Honour.  Your Honours, as to the Grierson point, it is accepted by the Crown, as I understand the submissions, that section 12 of the Criminal Appeal Act did not enliven any power of the Supreme Court, which might have permitted the reopening of a perfected order.  As we say in our submissions in reply, paragraph 6, despite the errors in the first judgment, the judgment was a judgment on the merits within the conventional use of the term “on the merits” and there was simply no power in the Court of Criminal Appeal to reopen it, it having been perfected.

KIRBY J:   Now, what does “perfected” mean actually in the case of the Court of Criminal Appeal?

MR BARKER:   It means enter the court into the Criminal Appeal Rules, your Honour.  I will take you to the rules.

KIRBY J:   So somebody goes up to the registry of the Court of Criminal Appeal with a piece of paper that has “appeal dismissed” with the names of the judges on the top and files it and that is a perfection of the order.

MR BARKER:   Yes, it is an administrative matter.

GUMMOW ACJ:   Hopefully it is looked at by the registry before they accept it.

MR BARKER:   Yes.  The rule in question was rule 53 of the Criminal Appeal Rules.

GUMMOW ACJ:   We have the Criminal Appeal Rules as in force at 17 June 2003?  That is probably the right date.

MR BARKER:   Yes.

GUMMOW ACJ:   What rule is it, Mr Barker?

MR BARKER:   Rule 52:

The Registrar shall also notify the proper officer of the Court of Trial of any orders or directions made or given by the Court ‑ ‑ ‑

KIRBY J:   No, but that is consequential, so that does not deal with the matter.

MR BARKER:   But 53:

(1)Such proper officer shall thereupon enter the particulars of such notification on the records of the Court of Trial.

KIRBY J:   I have a form of the rules that says 53 repealed.  That is not applicable at the relevant time, is it?

MR BARKER:   Yes, it was re-enacted in 2002.  Rule 53 made the same sort of provision and that that was abandoned in 2007 after the Burrell judgment.

KIRBY J:   But 53 is referring to the proper officer who is the proper officer of the court a quo, that is the court below.  So is that where the order is entered, is it, or is there an order perfected in the registry of the Court of Criminal Appeal?  I know from my knowledge there is a registrar of that court.

MR BARKER:   By the proper officer.

KIRBY J:   Where is that dealt with?

MR BARKER:   Rule 53.

KIRBY J:   That says:

Such proper officer shall thereupon enter the particulars of such notification on the records of the Court of Trial.

That therefore is a reference back to the registrar – ie, the registrar of the Court of Criminal Appeal in 52 - notifying the proper officer of the court of trial.  Now, where is the provision in the rules for the registrar of the Court of Criminal Appeal to enter up a formal order in the records of the Court of Criminal Appeal?

MR BARKER:   His task is under rule 52 to notify the proper officer.  The proper officer then undertakes the task of entering the order. 

GUMMOW ACJ:   Rule 53(2)(b).

KIRBY J:   That is a reference to the court a quo.  That is the reference to the court below, is it not?  It is not a reference to the Court of Criminal Appeal.  Is there any perfection of the order in the registry of the Court of Criminal Appeal?

MR BARKER:   Well, these are the Criminal Appeal Rules.

KIRBY J:   I realise that and maybe a proper place where it is perfected is in the court of trial.  I do not know.  But I would have expected to see in the Criminal Appeal Rules governing the Court of Criminal Appeal something about the registrar shall enter an order in the records of the Court of Criminal Appeal which give effect to the decision of the judges constituting the Court of Criminal Appeal.

MR BARKER:   Well, your Honour, this rule has been in effect since 1903 ‑ ‑ ‑

HAYNE J:   Do we not have to take account of rule 51 for that is what underpins what appears at page 4313 of the appeal book?

MR BARKER:   Yes, your Honour.

HAYNE J:   Page 4313 is a record of the Court of Criminal Appeal, is it?

MR BARKER:   I think the answer is yes.

GUMMOW ACJ:   That was in conformity with rule 51.  That was telling your client what happened, amongst other people.

MR BARKER:   Yes. 

KIRBY J:   That is an initiative, not of the parties, but of the registrar of the Court of Criminal Appeal.

MR BARKER:   Yes, your Honour.  I mean, this procedure was, in effect, the same in 2007 as it was in 1903.  It was certainly the case when Grierson was decided.

KIRBY J:   The problem I have with that is that it makes no allowance for the fact that the parties before the reasons are handed down to call to the notice of a court some mistake of fact or law in order to, as it were, get the court to correct matters before the order is perfected.

MR BARKER:   Yes, your Honour, and such apprehensions have been expressed by other judges but nobody has said Grierson was wrong.  I know your Honour was a dissenter in the DJL Case, but it seems to have been ‑ ‑ ‑

KIRBY J:   It is just given that judges are human beings, given that they can make mistakes or misunderstand facts or law, it just seems a somewhat artificial rule to say that if the mistake can be drawn to their notice that they cannot correct it because the alternative hypothesis is that you have to come up to this Court on special leave and we all know that that is not given as of course.  It is quite difficult to get it.

MR BARKER:   I have noticed that, your Honour.

KIRBY J:   You have noticed, yes, I thought you might.  I remember.

MR BARKER:   However, your Honour, accepting all that, the very point has been considered time after time in cases which we have listed in our list of authorities and the courts have all ‑ ‑ ‑

KIRBY J:   You say that any hesitation I alone have been expressing about this I have to submit that the Court has in Grierson and DJL said that if it is perfected, it is perfected, end of story and you cannot change it in the court below, you have to come to this Court?

MR BARKER:   That is precisely our submission, but, of course, your Honour is free to dissent, but I say that with respect.  For example, Justice Hodgson looked at the very point in Reardon and came with a ‑ ‑ ‑

GUMMOW ACJ:   What is the citation of that, Mr Barker?

MR BARKER:  That is (2004) 146 A Crim R 475 and perhaps I could take you to that.

GUMMOW ACJ:   What was the issue in Reardon?  How did the problem arise?

MR BARKER:   The issue is whether a judgment could be reopened after it was perfected and at page 482, paragraph 23 his Honour referred to Grierson.  He considered on page 483 the qualification suggested to the principle and he went through the cases which confirmed the principle, Pantorno, Postiglione.  He said at page 487, paragraph 40:

The authorities make it clear that, if an application to reopen an appeal is made before the judgment dealing with the appeal has been perfected, the court has jurisdiction to reopen its consideration of the appeal, and that denial of procedural fairness will be a ground on which the court may take that course.  However, the situation is not so clear where the application to reopen is made after the order of the court has been perfected.  Grierson is direct authority to the effect that the Court of Criminal Appeal has no jurisdiction to reopen an appeal once it has heard and determined the appeal and the order has been perfected.

KIRBY J:   But Justice Hodgson is in a slightly different position than you are in today.  Justice Hodgson is bound by Grierson and Grierson states the law, unless this Court re‑expresses it and in DJL the majority and the plurality applied it.  But there have been utterances in this court.  I think the joint reasons of Justices Deane, Toohey and Gaudron – it is quoted on page 484 of Justice Hodgson’s reasons – and my remarks in Postiglione and in DJL.  I mean, in DJL I noted cases in the Court of Appeal, before perfection, where mistakes were immediately brought to the notice of the Court of Appeal and in one of them Justice Sheller and I changed our mind and altered our orders, and came to the opposite result.  That is just in the nature of slips and mistakes that you can make.

MR BARKER:   Yes, of course.  Grierson makes plain that the process in civil cases is not relevant to this argument.

HAYNE J:   There is no relative distinction, is there, in civil cases if the appeal is determined and the order is entered?  The circumstances in which you can reopen the order, once entered, are, I would have thought, other than in this Court, extremely limited.

MR BARKER:   Yes, that is what was said in Bailey v Marinoff.

HAYNE J:   Yes.

MR BARKER:   So, I am sorry, in answer to your Honour Justice Kirby, Grierson continues.

GUMMOW ACJ:   I do not think your opponent seeks to reopen Grierson, as I understand it.

KIRBY J:   No, the respondent does say there is a recognised exception for denial of procedural fairness.

MR BARKER:   Yes.

KIRBY J:   That has been, as it were, said in obiter in a couple of cases.  Why should there not be such a – I mean, in administrative law, a denial of procedural fairness sometimes makes a decision void or voidable.  Now, we are talking here of orders of courts that are not so susceptible to avoidance, but the problem I have is the one I mentioned in DJL and I will say it and will not say any more about it.  It is not honest or realistic to expect that you can overcome such problems through the process of special leave as ordinarily observed.  Unless the Crown were to agree that a slip has occurred and co‑operate in an order that the matter be redetermined and the orders below set aside, the special leave list is a very difficult gateway for parties to get through.  That, therefore, means that we are, in a sense, countenancing mistakes that should, in justice, be corrected.  That is what has concerned me in Postiglione and DJL. 

MR BARKER:   Of course, the position has been remedied, at least in part by the amendment to the rules, which permits an application to be made after perfection of an order.  That amendment, of course, came about because of this case.  So we simply submit that Grierson still applies and there was no qualification to it which permitted the Court of Criminal Appeal to act as it did.  That has the consequence, we submit, that when one looks at the material which was wrongly taken into account by the court, that it must have played some part in the determination in the first judgment and the matter ought to be going back to the Court of Criminal Appeal.

GUMMOW ACJ:   What was your opponent’s attitude, as you understand it, after the problem was discovered and before the second hearing?

MR BARKER:   The second hearing was ‑ ‑ ‑

GUMMOW ACJ:   I have not used the word “application”.

MR BARKER:   Nobody applied.  The court simply learnt of the mistakes - I am not quite sure how – and summoned the parties to a hearing, which resulted in the second judgment.  But there was no application made by the Crown and certainly not by the defence.

KIRBY J:   But the answer to the Acting Chief Justice’s question is that there was no opposition.  The Crown did not say “Stop - Grierson, the way is barred”.

MR BARKER:   The Crown went in enthusiastically supporting the proposition that the order could be reopened.  It was done in very much of a rush because Justice Sully was about to retire and he was one third of the Bench.  Those are our submissions on the Grierson point, your Honour, in addition to what is in the written submissions.

GUMMOW ACJ:   Thank you, Mr Barker.  Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Can I just say, your Honours, by way of background and matters raised by ‑ ‑ ‑

GUMMOW ACJ:   Do you seek to reopen Grierson?

MR SEXTON:   No, your Honour. 

GUMMOW ACJ:   How do you seek to get around it?

MR SEXTON:   I will come to that.  I will just say something in a moment.  If I just say by way of background that under the previous system Order 53 of the Criminal Appeal Rules, what happened – and I think this emerges from Elliott and Blessington where the orders had not been perfected after 14 years and perhaps in more detail from Mrs Folbigg’s case in the Court of Criminal Appeal in New South Wales – the way in which Order 53(1) was said to be carried out was that the notification of the judgment of the Court of Criminal Appeal was stapled to the indictment, but, of course, all this was seemingly from the evidence in Mrs Folbigg’s case happening in the same room in the registry and the division of tasks between the different individuals and the registry was not, it seemed, necessarily consistent with their titles, so that, in effect, there were a lot of unsatisfactory aspects of this and, of course, the rules have now been changed after those two cases which really highlighted the problems of the system so that under the new rules ‑ ‑ ‑

KIRBY J:   When was the change effected?

MR SEXTON:   September 2007, I think, your Honour.  So that that is in a sense the background to all of this.  As to the question of reopening, I am not sure that I can really add to what we have set out in our written submissions which, in summary, I think, says that while it is true that the Crown supported the reopening by the Court of Criminal Appeal, there is no express authority that would allow that to happen.  It is a question of whether one would accept in a sense a new category of exception to Grierson; fraud, for example, would have always been an exception.  This was a case here where the court proceeded under a misapprehension of the facts and the question is whether that could be a new category.

HAYNE J:   On what basis could it be?  What is the purpose, do you say, of the Grierson rule?

MR SEXTON:   The purpose is one of finality and ‑ ‑ ‑

HAYNE J:   It is twofold, is it not?  Finality of litigation in superior courts of record where the record of the court is conclusive, but also, like the principles of open justice spoken of in Scott v Scott, the principle is there as a spur to the participants in the system to get it right.

MR SEXTON:   That is so, your Honour.  This was the unusual ‑ ‑ ‑

HAYNE J:   What is the footing on which - do you now propound an exception, Mr Solicitor, in this Court?  Do you say we should find an exception?  What is your position?

MR SEXTON:   The Court of Criminal Appeal found an exception on a notion of procedural fairness, and I will just come back to that in a moment, and we say that it was open to them to do so, but we looked at this in our written submissions and, of course, we recognise the difficulties on the existing authorities.  The particular problem here was that really as a result of what had happened in Blessington and Elliott and also in Folbigg, that the orders were taken out almost at once.

KIRBY J:   This day they say.  That must have been a practice in the Court of Criminal Appeal registry as at that time.

MR SEXTON:   Only just for a very short time, your Honour, as a result of what had been revealed by those two earlier matters.  So that previously it was supposed to be done after 28 days, I think, but certainly in those cases that had not happened and in many other cases I suspect as well, but in this case the registrar of the Court of Criminal Appeal in an amazing exercise of efficiency which has actually resulted in further litigation took the orders out straight away, almost straight away, so that there was no chance for anyone to see what had happened with the judgment.

Then, of course, as my learned friend, Mr Barker, has said the court itself reconvened, I think, on the – the judgment was handed down on the Friday and I think the court reconvened on the Monday and then I think the argument in relation to the question of reopening took place on the Wednesday or Thursday and the time problem was that Justice Sully was finishing on the Friday.

KIRBY J:   Is it revealed how the initiative by the court occurred, that it took its own initiative – how it came to the notice of the court that the facts were wrong?  I mean, in the two cases which I footnoted in DJL the parties pronto got in touch with the registry and that caused the matter to be relisted and a direction to be made that no order be entered until the court had dealt with the matter. 

MR SEXTON:   I think one or both of the parties did notify the court, but it was too late once – even after an hour or so when people had had a chance to read the judgment the orders had already been taken out.

KIRBY J:   Now, in New South Wales the problem, as Mr Barker has pointed out, has in a sense been fixed up for the future by the change of the rules.  But we have to deal with this matter in terms of legal principle for the whole of the nation because in other parts of Australia there may not be a similar correction by the rules.

MR SEXTON:   It would still have to be done in New South Wales within 14 days, your Honour, so it is possible to envisage a situation where some problem about the judgments does not emerge until after that time.

KIRBY J:   Now, you in your written submissions, as I read them, seem to flirt with the idea that there is this exception for procedural unfairness.  It is mentioned in a number of obiter, including in this court, so I think we really have to pin you down.  I think we have to know, do you submit to the Court that the Grierson rule, which has itself been the subject of further consideration since it was pronounced, has an exception where it is demonstrated that there has been a departure from fundamental principles of procedural fairness to the parties?

MR SEXTON:   We do, your Honour, but we accept that on the existing authorities it is not at all clear what would be involved in that.  For example, there are cases where grounds of appeal have not been considered – existing grounds of appeal have not been considered by the court below.  Well, that might raise that question but we acknowledge in our submissions that this is a novel situation, that it does not fit in with the existing authorities.

CRENNAN J:   At 5.9 you identify provisionally, at least, by using the word “if” a problem with procedural fairness and you have done that in the context of 5.7 where you have acknowledged that that exception has not been considered by this Court.  What I wanted to ask you is if you are urging that this Court develop that exception, does 5.9 convey the basis upon which you are urging it?  I, like Justice Kirby, was not sure whether you were urging that this Court should develop that exception or whether you were speaking very provisionally in 5.9 about a denial of procedural fairness.

MR SEXTON:   Well, your Honour, we say that this was, because of the way the orders were taken out, a highly unusual situation and that we would say that it could constitute an exception to the Grierson principle.

CRENNAN J:   Would there be other courses of action open to the Crown in these circumstances?

MR SEXTON:   I cannot think of one, your Honour, but it does not mean that there is not.  It simply was that everything was closed off here and ‑ ‑ ‑

KIRBY J:   If you think of the reasons Justice Hayne gave for the Grierson finality principle, then at least conceptually one could say, well, out there in the profession and the judiciary and the world they are not going to get distressed or feel that we have destroyed the fundamental principles of the finality of legal process.  If within a very short time a party comes along and says, though the order has been perfected, there was an accidental mistake or a serious breach of the rules of the natural justice and you should reopen that order, within the discretion of a court which is not going to throw away its discretions recklessly, it would be mindful of the principle of finality.

So, as far as I am concerned, you should not assume that I am against the principle.  I may be alone in not being against the principle, but I can see that you would not do mortal damage to the principle of finality by allowing, within a very short time, exceptions if it were shown that a court has simply not asked parties to address a particular issue and then has dealt with it or has deal with a matter on a completely mistaken understanding of the facts, which is what appears to have happened here.

MR SEXTON:   In general terms, your Honour, we would not want to argue against the principle of finality and one might think that ‑ ‑ ‑

HAYNE J:   And what do you mean by it, Mr Solicitor?  Finality of argument and order, do you, or simply finality of order?  What is the finality of which you are speaking?

MR SEXTON:   Of the order, your Honour.

HAYNE J:   And not of argument, namely, that the parties have one opportunity in the ordinary sequence of events in litigation to put their case and not to come back again?

MR SEXTON:   But that is part of it, your Honour.

HAYNE J:   Just so.

MR SEXTON:   We agree with that.  And one might think that normally this would be a principle that in the area of the criminal law would largely be favourable to the Crown.  Certainly in those earlier matters that I mentioned the problem of the lack of finality caused a problem for the Crown.  It is an unusual situation here perhaps where it is the other way round.  So we would not in a general sense want to argue against it, but this, as I say, is a very unusual situation and came about because of the history of this particular rule in New South Wales.  The rule itself has been changed.

GUMMOW ACJ:   What is the power to replace it by this rule that does away with the ordinary principles?  Rule 50C, is it?

MR SEXTON:   Yes, that is the new ‑ ‑ ‑

GUMMOW ACJ:   It allows the court to set aside an order within 14 days after entry.

MR SEXTON:   Section 28 of the Criminal Appeal Act deals with the making of rules, your Honour.

GUMMOW ACJ:   It is a question of whether it is a matter of practice and procedure, is it?

MR SEXTON:   And (h) is a general provision, your Honour.

KIRBY J:   Have you looked at what the situation is under the law in England or Canada or New Zealand or other jurisdictions?

MR SEXTON:   No, your Honour.

KIRBY J:   One would think that if you were coming here to urge the existence of an exception for denial of procedural fairness or fundamental error, that one would look at what is the position in other common law countries.  Does the great strength of the finality principle swamp all these other considerations or is there an exception recognised there?

MR SEXTON:   I am not sure, your Honour, if it has taken the course that has in this country.  The authorities in this country are certainly rather limited. 

KIRBY J:   I know they are, but they were stated in earlier times when maybe there was a greater rigidity in some matters in the law.Some might say greater adherence to principle.

MR SEXTON:   I am not sure there is a body of English law on this question, your Honour, but ‑ ‑ ‑

KIRBY J:   We will not know unless somebody looks at it.

HAYNE J:   There is at least some English authority on the civil side about recalling orders that have been pronounced but not entered.  See, for example, in Re Harrison’s Share Under a Settlement – what a wonderful

English name – [1955] Ch 260, Pittalis v Sherefettin [1986] QB 868. Some at least of the cases are collected by Professor Allars in a piece called “Perfected judgments and inherently angelical administrative decisions”, 21 Australian Bar Review, page 50 and following.

MR SEXTON:   Your Honours, can I just say something about the consequences of having made those submissions, but if your Honours were of the view that the Court of Criminal Appeal was not entitled to reopen its first judgment, then the question is what orders would follow from that.  It would of course be open to this Court to look at the special leave grounds which have been referred and raise, in a sense, two issues, although they are two related issues or ‑ ‑ ‑

KIRBY J:   Why would we do that?

MR SEXTON:   Or, as I am saying, your Honour, it could ‑ ‑ ‑

KIRBY J:   The whole point of the appellant’s case is that he has not had the matter determined according to law by the tribunal which is authorised by law to decide criminal appeals in New South Wales. 

MR SEXTON:   If we are confined to the first judgment, which would follow that it could not be reopened, then of course there is an obvious error there, although it would be open again to this Court to look at the judgment to see whether the Court would have arrived at that conclusion in any event, notwithstanding the extraneous matters that it took into account.  The sense in which the grounds that have been referred, but have not yet been granted special leave, have been already considered twice by the Court of Criminal Appeal in New South Wales, and there is the question of what sort of Bench would consider it.  The same Bench could not be reconstituted in any event because, as my learned friend points out, Justice ‑ ‑ ‑

GUMMOW ACJ:   There would be obvious sense in doing it again with a fresh Bench.

MR SEXTON:   Your Honour, we would simply say it would be open to this Court to look at it as well.

GUMMOW ACJ:   We do not ordinarily direct that sort of thing.

MR SEXTON:   Unless there is anything specific, your Honours, I am not sure that I can add to that first matter.

GUMMOW ACJ:   All right.  We will take a short adjournment and consider the course we will take.

AT 10.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.01 AM:

GUMMOW ACJ:   Yes, Mr Barker, anything in reply on the matters argued this morning?

MR BARKER:    No, your Honour.

GUMMOW ACJ:   The Court will reserve its decision on the grounds that have been argued this morning and, if it becomes necessary to hear argument as to the balance, the parties will be notified of that in due course.  The immediately significant step is that we are reserving our decision on the Grierson points argued this morning. 

We will adjourn until 10.00 am tomorrow.

AT 11.02 AM THE MATTER WAS ADJOURNED