Burrell v The Queen

[2008] HCATrans 128

[2008] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S327 of 2007
  No S328 of 2007

B e t w e e n -

BRUCE BURRELL

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 MARCH 2008, AT 9.32 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 applicant.  (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 J.A. GIRDHAM, for the respondent in both matters.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Barker.

MR BARKER:   Your Honours, if I may, I would like to start with grounds 2, 3 and 4 in the first application.  Your Honours will find that at page 514 of volume 2, and that is the juror issue.  What happened was this.  During the trial the jury was out for eight days unable to agree and a juror sent a letter to the judge which we say was really a cry for help.  We wanted to give you the original of that letter but the Court of Criminal Appeal seems to have lost it.  What happened was, it was produced to us on the appeal, the unexpurgated version, I tendered it, it was not marked as an exhibit.  A full copy was accidentally put online and later retrieved.

GLEESON CJ:   We have a full copy.

MR BARKER:   That is the copy your Honours have.  Our submission is that the document dealt with matters quite outside acceptable jury deliberations.  The trial judge masked most of it so that counsel had no idea of its true significance.  Your Honours will see that in volume 2 at page 459 where you have the blacked out version which does little more than disclose some infractions by the juror and the fact that the jury was deadlocked.  There should be before you a copy of this document with the masking struck out so you can see what was actually removed.

The defence counsel sought an order that the jury be discharged but he had to make the application in a factual vacuum not knowing that the complaining juror was being threatened and intimidated by the majority to the extent that he or she said in the letter he or she thought that the majority were blackmailing the complaining juror.  They would drag out the deliberations, they would reveal his or her infractions, they treated the juror in an unpleasant manner, they threatened to freeze the juror out unless he or she surrendered.  The letter, as your Honours will see, was a plea to bring this to an end because they simply were not going to get anywhere.

His Honour gave a Black direction, of course, which inevitably, we submit, was seen as being directed only to the complaining juror and the next day they reached unanimity and convicted.  In a sense, the issue is encapsulated in the Crown’s submissions in volume 2 at page 534, line 40:

In determining the application –

that is the Black application –

his Honour was confined to considering the note in its edited form, which suggested no more than that the jury was divided and that the note’s author wished the deliberations to be brought to an end.

We agree that he should not have been so confined.  He should have produced the letter to counsel to enable proper application to be made based on facts which would have included the fact that the juror, apart from being intimidated by other jurors, or as a consequence of, was probably not in a condition to deliver a true verdict.  His Honour, of course, held that all that was blacked out should not be shown to counsel and the Court of Criminal Appeal held there was no irregularity.  That is in volume 2 at pages 459 to 484.

The law is clear, your Honours, that in most cases any communication from a juror to a judge should be disclosed to counsel and the exception seems to be communications that directly related to deliberations but this note, in my respectful submission, went far beyond a note dealing with mere deliberations and it is something which counsel should have been shown.

The issues were laid bare, your Honours, in oral argument.  I am not suggesting that judges should not change their minds, but if one looks at the argument in the supplementary submissions first of all at page 46, line 40 where I have briefly put the applicant’s position, then if you go to page 51, line 40:

SULLY J:   But the material didn’t really disclose, when one reads it carefully, the content of the deliberations of the jury.

MCCLELLAN CJ AT CL:   I was going to come to that if I may to inform the discussion.  I’ve just re-read it.  Apart from perhaps a discussion about the onus of proof, is it not the case that the balance of the material, and you can look at it again if you wish, relates to exchanges between the jury unrelated to their reasoning processes for or against a guilty verdict.

At page 53, his Honour Justice Sully said at line 40:

Why were counsel not entitled to be told that that is what had been reported to the judge till he told in open court, subject to a precise embargo of the kind that we ourselves placed on the matter yesterday . . . At the very least, why were counsel not entitled to be told, to be shown the note under a proper embargo and told that if they wished to be heard they should put it in writing.

At page 54, line 40:

But the end result was to create an impression may I suggest, Mr Solicitor, that was completely at odds with what was suggested by the message.  That’s what’s troubling me at any rate.

What I say about that is that it reveals that the issue was a difficult one and because of that fact alone the judge was entirely in error in concealing the significant parts of the note from counsel and the issue should have been decided in favour of the applicant.  We submit it remains of general importance quite obviously in federal prosecutions but also in respect of trials under State legislation which permits majority verdicts but which does not permit the intimidation of one juror by the majority.  The same situation could arise in any trial even with a regime that permits majority verdict.  In my submission, the conduct of the trial judge in response to that jury request ought to be itself sufficient to quash the two convictions because he did not get a fair trial and a grossly irregular procedure followed.

If I could then go to grounds 5, 6 and 7, that is the circumstantial evidence grounds.  With respect to him, the trial judge really pulled the rug from under the applicant’s feet in two significant ways.  The Crown case at this and the previous trial was always, without deviation, that the starting point was the proposition that Mrs Whelan entered the Pajero vehicle driven by the applicant at the Parkroyal Hotel, Parramatta at 9.38 am on 6 May 1997.  There was no alternative hypothesis ever advanced by the Crown as to how a process of abduction and murder began.

Let me give you two examples of this.  If one looks at the summing‑up in volume 1 at page 68 at the beginning of the page:

The last recorded sighting of Mrs Whelan was timed on the hotel security system at 9.38.03.  There is no challenge to the accuracy of the time system.

She had an entry in her diary:

she had an appointment to be somewhere at 9.30, she was running late.

It is the Crown case that Mrs Whelan walked from the car park ramp to the accused’s car; that it had been waiting at the kerb since it pulled in at 9.01.24.  That is on camera 6.  The car left there, the Crown says, at 9.38.45 and you see it on camera 7 travelling east.

It is also the Crown case that if Mrs Whelan initially went willingly with the accused, there must have come a point at which she ceased to be a willing passenger and she was, by some manner of means, taken against her will. 

Then if one goes to the first judgment in volume 2 at page 379, line 10:

Extensive investigations by the police disclosed that there were only 1,716 two door Pajeros of the relevant model produced and sold in Australia in the years 1991-1997.  Police contacted many of the owners of these vehicles who indicated that they had not been at the Parkroyal Hotel that day. 

He discussed the value of that evidence.  Then:

However, on the Crown case the coincidence that 43 seconds after Mrs Whelan emerged into Phillip Street a vehicle of a kind similar to the appellant’s pulled out of the kerb was alleged to be of significance.  The other camera inside the lobby of the hotel did not record Mrs Whelan as having walked along Phillip Street past where the vehicle was parked.  The Crown case was that the irresistible conclusion was that she got into the vehicle seen by camera 7, the same kind of vehicle as that possessed by the appellant.

That was the position from which the Crown did not ever deviate.  In our submission, firstly, is the jury should have been told that if they were going to convict, they must find that circumstance beyond reasonable doubt.  But there were three Crown witnesses whose evidence if accepted cast doubt on the proposition that Mrs Whelan got into a Pajero at 9.38.  I think I need only tell your Honours that one witness, Mrs McMurray, said she saw her about 9.40 am.  Mrs Frances Carter said she saw her around 10.30 am and Mr Norman Elliott said he saw her after 9.38 going in a different direction.

The summing‑up eroded the effect of that evidence significantly because not only did his Honour decline to tell the jury they would have to be satisfied beyond reasonable doubt that Mrs Whelan entered the applicant’s vehicle at 9.38 am, he said, in effect, you do not have to find at all that she entered the applicant’s Pajero at 9.38.  He said, all you have to be satisfied about is the applicant detained Mrs Whelan in some manner and by some means by 3.45 pm on that day because that was about the time she was due to arrive at her husband’s place of work at Smithfield.

GLEESON CJ:   What if the jury had been convinced that those dot‑point notes were a draft of the letter that was ultimately written?

MR BARKER:   Well, that they would not prove murder.  They would prove, I suppose, some involvement in abduction but, of course, that is another issue.  The other way the Crown put it, never deviating from the Pajero at 9.38, they said there are three bodies of evidence:  the Pajero, the note and the phone call and that is another ground here which, if that was the way the case was going to go to the jury, those three points were sufficiently important by themselves to be the subject of the direction beyond reasonable doubt.

GLEESON CJ:   According to Shepherd the test would be whether they were indispensable.  They were individually indispensable.  Why were they individually indispensable?

MR BARKER:   They were not.  The Crown said they were; all the time starting at 9.38 at the hotel.  It became the significant issue in the case because the Crown made it so.  I was going to take you to the summing‑up in volume 1 at page 83, line 40:

It is possible that you may find yourselves satisfied beyond reasonable doubt that she was detained in precisely the same way as is submitted to you by the Crown, that is to say, that the accused drove her away at 9.38 and some seconds travelling eastwards and that within some time shortly after that she was detained because she became an unwilling passenger.

It is not, however, necessary for you to be satisfied beyond reasonable doubt that that is precisely how the accused went about the detention.  What you must be satisfied about beyond reasonable doubt is that, by some manner and means, and certainly by, say, a quarter to four on the same afternoon, 6 May, the accused detained Mrs Whelan.  I say a quarter to four because that is about the time Mrs Whelan was due to arrive at her husband’s office . . . and clearly, if she was kidnapped, she had been kidnapped by then.

That was not a hypothesis advanced by the Crown ever and that had the effect of entirely eroding the value of the evidence of the three witnesses who say they saw her after 9.38, because it made, in effect, the evidence of little consequence.  No matter that it was the cornerstone of the Crown case, we now have his Honour saying it did not matter, that something could have happened during the day, we do not know what, but she did not turn up at Smithfield so it happened before 3.45. 

The importance of the issue, of course, is seen in the amount of evidence when it was led in respect of it; some 1,550 statements from Pajero owners throughout Australia, very lengthy evidence about the security cameras at the Parkroyal Hotel, very lengthy evidence about the nature of the vehicle.  There is no doubt, in my respectful submission, that it was put as the cornerstone of the Crown case and it was very prejudicial and damaging to the applicant to tell a jury that not only need they not find this beyond reasonable doubt, they need not find it at all and that is how the case finished up.

Ground 7 is the criticism of counsel which really overlaps this ground.  The Crown, as I said, always said, clinging to the Pajero, that there were three main bodies of evidence:  the Pajero, the dot‑point note and the telephone call, and they said the jury could convict on those bodies individually or in combination but never deviating from the Parkroyal Hotel.  But when defence counsel addressed the jury consistently with that proposition, he ran into trouble and that should not have happened.  Could I take you to the first judgment, please, at volume 2, page 417, paragraph 146, line 40:

it was submitted that, at the least, before the appellant could be convicted the jury would have to be satisfied beyond reasonable doubt of the events relating to the Pajero at the Parkroyal Hotel.

The position was arguably complicated by the way in which the Crown put the prosecution case to the jury.  In the course of his closing address the prosecutor identified the fact that the jury had been provided with “three completely independent bodies of evidence.”  He said to the jury:

“If you are satisfied in relation to the Pajero . . . 

If you are satisfied beyond reasonable doubt that those dot‑point notes contained his early thoughts . . . You would have to convict him . . . 

If you are satisfied beyond reasonable doubt that he made that call to Crown Equipment . . . you would have to convict him . . . 

Now, you can look at those three bodies of evidence independently but you can also look at them all together and you can say to yourself:  What an amazing body of evidence –

et cetera.  Then his Honour went on to say at page 419, line 20:

Both counsel have said things to you in their closing addresses that may possibly lead to a misunderstanding of the law.  I have told you that you are to judge this case on the evidence, and that means all the evidence.

The Crown submitted to you that you could be satisfied beyond reasonable doubt, on the evidence of the events at Parramatta on 6 May that the accused was the kidnapper . . . 

The point I wish to make now is that what the Crown said to you may have given you the impression that you can properly find the accused guilty only if this evidence, standing by itself, is sufficient to prove beyond reasonable doubt that the accused was the kidnapper.

And so on.  What counsel was doing was addressing consistently with the way the Crown had put the case.  His Honour then weighed in at the end of it all and said they were both wrong and there was no need for proof beyond reasonable doubt.  In my submission, that itself was productive of a substantial injustice.  The next ground I would like to argue is ground 8 which is the section 38 Evidence Act ground.

GLEESON CJ:   You seem to have run out of time, Mr Barker.

MR BARKER:   I am sorry, I have.

GLEESON CJ:   We have read your written submissions, but there is a question I wanted to ask you about ground 1 of the first application and grounds 1 and 2 in the second application.  Ground 1 on page 514 and grounds 1 and 2 on page 544, they are related, are they not?

MR BARKER:   They are, your Honour.

GLEESON CJ:   They are in turn related to ground 9 on page 516, I suppose?

MR BARKER:   Yes.

GLEESON CJ:   What I wanted to ask you was this, are those grounds pressed?

MR BARKER:   Yes.

GLEESON CJ:   How did the erroneous factual material get before the Court of Criminal Appeal?

MR BARKER:   It was a Crown case statement which was an appendix to the appellant’s or applicant’s submissions to the Court of Criminal Appeal.

GLEESON CJ:   I would like to understand that a little better than I do at the moment.  There were written submissions to the Court of Criminal Appeal by the applicant?

MR BARKER:   Yes, and the Crown.

GLEESON CJ:   Yes, and the applicant appended to its written submissions a document called a Crown case statement.  What is that document?

MR BARKER:   It was a document last amended in 2003 and it was included amongst the papers as being a useful summary of some evidence which counsel on appeal intended to reargue.  It was in respect of findings made by Justice Sully and Justice Wood on the interlocutory applications, but the grounds which counsel was going to reargue were in fact withdrawn the day before the appeal on notice to the registrar.  That unfortunately did not get to the ‑ ‑ ‑

GLEESON CJ:   Is it the case that the information that appeared in the first reasons for judgment of the Court of Criminal Appeal as evidence that was before the jury in support of the Crown case was erroneous information, that it was given by counsel for the appellant?

MR BARKER:   Yes, your Honour, but it was clearly not evidence before the jury.

GLEESON CJ:   I understand that.  The Court of Criminal Appeal made some mistakes about the facts.

MR BARKER:   Very substantial mistakes.

GLEESON CJ:   And the substantial mistakes they made they made because they accepted what counsel for the appellant told them about the facts?

MR BARKER:   No, counsel for the appellant did not ever refer to the facts in the case statement.

GLEESON CJ:   I am sorry, a document described as submission.

MR BARKER:   There was a document there, yes.

GLEESON CJ:   The document came from your side of the record, did it?

MR BARKER:   Yes.

GLEESON CJ:   The mistakes were not picked up or corrected by your opponents?

MR BARKER:   No, it was not the subject of any discussion or issue on the appeal at all but their Honours had ‑ ‑ ‑

GLEESON CJ:   The Court of Criminal Appeal was led into error by the parties.

MR BARKER:   We would not be as charitable as that, your Honour.  We say they were led into error because they did not look at the record properly as they were obliged to do, as instructed by cases like Weiss and Festa.

GLEESON CJ:   There would be another way of putting that that was also uncharitable but the mistakes that they set out to correct by the procedure that they followed, which is the subject of what I might call your Grierson argument, are mistakes that arose from the fact that they accepted at face value the information that was provided to them by counsel for the appellant and was not corrected by counsel for the respondent, is that right?  I mean, where did they get the incorrect information, that is what I want to know?

MR BARKER:   They got it from that document.

GLEESON CJ:   Who did it come from?

MR BARKER:   I am agreeing with your Honour.  It came from our side, but in doing so, they must have paid no regard to the transcript, the summing‑up, the Crown submissions or defence submissions, apart from that one document.

GLEESON CJ:   All right.  I just wanted to clear up that matter of fact.  Thank you, Mr Barker.

MR BARKER:   I suppose it would be a technical argument to say there are two applications so I am entitled to 40 minutes, but I will not put it.

GLEESON CJ:   You are right about it being technical, but we might have to come back in due course to ask you some questions about the relationship between these and we can do that after we have heard your opponent.

MR BARKER:   Thank you, your Honour.

GLEESON CJ:   Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, before I go to the individual grounds of appeal, can I just say something generally about them all which is this.  There is no dispute, in our submission, between the parties about the relevant legal principles in either of the matters and it is a question of how they would be applied to the facts of this case.  So that really what my learned friend is doing, we would say, is asking this Court to sit as a second Court of Criminal Appeal, something that traditionally it has never done.

GLEESON CJ:   I understand that point in relation to the grounds of appeal that we have heard oral argument about, but what about the Grierson point?

MR SEXTON:   Your Honour is quite right to say that that is the one separate matter.  What we would say about that is – and I can deal with that ‑ ‑ ‑

GLEESON CJ:   You deal with them in any order you choose, but just make sure that before you finish you deal with the Grierson point.

MR SEXTON:   Let me deal with it first, your Honour.  What we say about that is that the Court of Criminal Appeal was entitled to reopen the matter and to, as it were, correct its judgment because the matter had not been heard on its merits, although we would say that the way in which it had not been heard on its merits was a rather marginal aspect of the case.  In other words, as the Court of Criminal Appeal said, the evidentiary matters that were taken into account incorrectly did not go to the heart of the matter and the Court of Criminal Appeal said would not in any way have affected the conclusions to which they came.  As to the way in which it was incorrectly taken into account your Honours have already heard.

GLEESON CJ:   What do you say was the basis of their jurisdiction to reopen the matter when their attention was drawn to these mistakes of fact that they had made?

MR SEXTON:   Technically the first matter had not been heard on its merits because two things had happened in fact.  One is that those incorrect matters had been taken into account, albeit we say they were not substantial and, secondly, five grounds of appeal that had been abandoned the day before the hearing commenced by my learned friends had been taken into account in the first judgment.  Of course, the incorrect factual matters really went to some of those five grounds so that the reason why that statement was taken into account was because the court was unaware for whatever reasons that the ‑ ‑ ‑

GLEESON CJ:   I do not quite understand that, Mr Solicitor.  Even if the factual matters were not relevant to any of the grounds of appeal that were still being pursued, that would not have made them incorrect, would it?  It would just have made them immaterial.

MR SEXTON:   Yes, that is right, your Honour.

GLEESON CJ:   But I thought some of these facts were incorrect.  To give an example, I thought that in their first judgment they made reference to evidence of a statement that Mrs Whelan made to somebody after she received a visit from Mr Burrell and I had the impression that it is said that that statement was not in evidence.  Is that correct?

MR SEXTON:   Yes.  The problem about some of those matters were, your Honour, that they were not in evidence at the trial that is ‑ ‑ ‑

GLEESON CJ:   That is a problem, normally.

MR SEXTON:   Yes, your Honour, but they were not ‑ ‑ ‑

GLEESON CJ:   When a Court of Criminal Appeal is reciting facts in a case where, amongst other things, it is dealing with an unsafe and unsatisfactory ground argument.

MR SEXTON:   Yes, your Honour, but it reconsidered all of those matters and your Honour will have seen in the Court of Criminal Appeal’s conclusions that in its view we would say it is clear from the face of the material that they were not matters that would have affected the court’s ultimate conclusion and that was what the court said.

GLEESON CJ:   Is it correct that the way they came to make those errors of fact, that is, the way they came in their judgment to describe certain things as evidence which were not in evidence is that they were given an account of the evidence by counsel for the appellant in written submissions or in a written document that was not corrected by the respondent?

MR SEXTON:   Well, when your Honour says was not corrected by the respondent, there was a great deal of material put before the court and at that stage that material had been put forward by the appellant in relation to the grounds of appeal that were still alive.

GLEESON CJ:   You may ultimately be right about the question of jurisdiction, but I just want to identify the way the errors of fact in the first judgment arose because that may be relevant to the question of the jurisdiction of the court to reopen the matter and reconsider the matter and is that how they came to be made?

MR SEXTON:   Yes, that is how they came to be made.

GLEESON CJ:   In other words, somebody took at face value a written account of the evidence that was handed up in argument?

MR SEXTON:   Yes, that is correct.  Well, it was filed considerably in advance, I think, of argument, your Honour.  As I say, the difficulty was that the Court of Criminal Appeal did not appreciate some of the grounds of appeal had been abandoned, because they were not considered either in the course of oral argument.

GLEESON CJ:   But they had to consider the whole of the evidence in dealing at least with the ground of unsafe and unsatisfactory verdict.

MR SEXTON:   They did.  But, your Honour, in addition to the fact that we say there was certainly jurisdiction here to reopen, it is, in a sense, the quality or the weight of the material that we point to and the Court of Criminal Appeal has analysed it quite carefully and come to the conclusion that it would not have affected the judgment that they came to.

If one looks at the totality of the case, we have set out in our written submissions that in addition to the three main areas of evidence on which both sides focused at the trial, there were quite a number of other weighty aspects of the circumstantial case and that when all that is taken together, these matters that were incorrectly taken into account initially by the Court of Criminal Appeal, we say do not amount to any substantial derogation from that total case.  That is why the court was able to comfortably come to the conclusion that they would have arrived at the same result when they reconsidered the material in their second judgment.

Your Honours, I will deal quickly with perhaps the other grounds of appeal.  If I take my learned friend’s grounds in the first matter, 2, 3 to 4 together, the jury note, there are really two aspects of that.  I will not go into the details of the note but one aspect was whether two aspects of the juror’s conduct were going to be used against him in some way by other members of the jury and the trial judge dealt with that, we would say.  The rest of the note simply reveals, in our submission, a strong disagreement in the jury room.  We would say it is far from unusual and the trial judge did not see this, quite correctly we would say, as an irregularity.  This is a three‑month trial and he gave a direction in terms of the Black decision of this Court in precisely those terms and, as has happened in many other cases, the jury reached a unanimous verdict.

As to the circumstantial evidence directions, grounds 5, 6 and 7, in a sense, which go together, all that the trial judge did was to point out to the jury, we would say, they had to take into account the whole of the evidence and not look at the case in a piecemeal fashion, as this Court warned against in Hillier, and the result is that that the jury was entitled to consider not only those three bodies of evidence, any of which individually, we would say, could have resulted in a finding beyond a reasonable doubt, but also the associated and additional materials which we have set out on page 538 of the second application book and that the trial judge’s directions, therefore, to the jury were very much in accordance with the principles laid down by this Court in Shepherd and in Hillier.

So far as unsafe and unsatisfactory verdict is concerned, ground 9 of my learned friend’s grounds, we have set out there what we say are the additional matters to those three bodies of evidence and we would say there is a very strong circumstantial case.  This was never a case where it could be said that a verdict of guilty was unsafe and unsatisfactory.

Your Honours, there is one further ground which relates to the additional cross‑examination of the three witnesses under section 38 of the Evidence Act.  We would say it is very much a discretionary matter for the trial judge and it is something that is obviously envisaged by that section.  That could hardly, we would say, ever be a substantial ground of appeal in this Court.  Your Honours, I have dealt with what I would call the Grierson point.

GLEESON CJ:   On that matter, Mr Solicitor, I take it from the written submissions, but correct me if I am wrong, that there is not any disagreement between counsel that Grierson remains the authority.  The question is whether there is a qualification to Grierson that covers this case.  I think your opponent says there is not and you say there is. 

MR SEXTON:   We have set out in our material in relation to the second matter a range of cases which indicate that there has always been, I will not call them exceptions to the Grierson principle, but qualifications to it where a matter has not for some reason – for example, there is the procedural fairness question and in one sense that is so here because when the judgment came down, the orders were perfected almost immediately ‑ ‑ ‑

GLEESON CJ:   Is that a new practice?

MR SEXTON:   I am sorry, your Honour?

GLEESON CJ:   Is perfecting the orders of the Court of Criminal Appeal almost immediately a new practice?

MR SEXTON:   Yes, it is something that has really come out of Blessington and Hillier, your Honour.

GLEESON CJ:   Yes, well, this is the reason judgments used to be delivered orally in what people call the olden days and the reason for that was that counsel were expected, indeed were paid, to attend on the delivery of the judgment.  It was included in the brief fee and it was part of their responsibility to get to their feet if mistakes like this were made and say, “Just a minute, that is wrong”.

MR SEXTON:   Whether it is called a denial of procedural fairness, in a sense, to both parties or whether it is that technically the matter was not heard on its merits, we would say that there must be a jurisdiction to reopen in this kind of situation and once it was reopened, as we would say, the matters to be corrected were not substantial.

GLEESON CJ:   There are some places in common law countries where written drafts of judgment are delivered on a confidential basis to counsel, perhaps a couple of days before judgment is handed down, in order to give an opportunity to correct this kind of thing.

MR SEXTON:   Your Honour, it might be, of course, more practical if there was some sort of gap between the orders being perfected, which there was not in this case, and the handing down of judgment without wanting to go back to the situation of Blessington where they were not perfected after 14 years, but they were perfected almost straightaway in this case and the contact was made pretty much straightaway again as soon as the judgment had been read.  But it really is, we would say ‑ ‑ ‑

GLEESON CJ:   I mean, the possibility of a trial judge or an appellate court in a case where there are a lot of facts making some inadvertent mistake about a fact, particularly where that comes about by just adopting a written statement of the facts handed up by the parties, is very high.

MR SEXTON:   Well, your Honour, what we say is that there must be, and there is, scope for reopening in this kind of situation, as there would be in a civil case, we would say.

GLEESON CJ:   You may be right about that, but it may be important to define what you call “this kind of situation”.  The scope of it seems to be unclear.

MR SEXTON:   Well, your Honour, at the margins it may be unclear, but we would say this is not one of those cases where there has been an obvious mistake, albeit not, we would say, a central one in the course of the original judgment.  In those circumstances, that the Court would – in one sense, the judgments can be looked at as a composite.

It is true that the orders have been perfected but in another sense the first judgment really does not reflect the tenor of the case and the way in which it has been argued by the parties.  So that what the court is doing in the second case is sitting to simply correct that judgment.  One could take it back and say, for example, judgment came out with the wrong date or the wrong title of the case, surely that could be corrected by the court even though the orders had been taken out.

At some stage there may be matters that could be considerable argument but we would say this is not that case and that if ever there was a case where the judgment could obviously be corrected because of the nature of the matters involved – if, for example, they were different kinds of issues, then there might be a different argument there.

GLEESON CJ:   Mr Solicitor, can I raise for your comment a question that might be described as a question of severability.  As I see it at the moment, but I would be interested to have your views, grounds 2, 3 and 4 on pages 514 and 515 and ground 8 on page 515 simply have nothing to do with what I have called the Grierson point, is that right?  On the other hand, ground 1 on page 514 and ground 9 on page 516 and perhaps grounds 5, 6 and 7 on page 515 could be affected by it?

MR SEXTON:   I am not sure that that is so, your Honour, in the sense that if one accepts that the court had jurisdiction to reopen and to do what it did, it really involves therefore that they were – there is a question, of course, separately as to whether the Court of Criminal Appeal was right, if I can call it the Shepherd type argument, and the unsafe and unsatisfactory argument, but what the Court of Criminal Appeal said in its judgment was that those matters that they incorrectly took into account did not and could not have had any effect on those conclusions, that is, relating to unsafe and unsatisfactory and Shepherd. 

GLEESON CJ:   Yes, and I understand why you say if they had jurisdiction to do that, then unless there is some apparent error in the rest of their reasoning, that would knock out these other grounds.

MR SEXTON:   Yes.

GLEESON CJ:   But let it be supposed they did not have jurisdiction to do what they did, then presumably, unless that became a barren technicality, it would be necessary, in effect, to leave open or leave alive the possibility of further consideration of the grounds that I mentioned that may be related to that.  For example, if they did not have jurisdiction to do what they did,

presumably the logic or corollary of that is that the matter should have been and should be considered by a differently constituted Court of Criminal Appeal.

MR SEXTON:   Well, your Honour, except that that does not get around if – I see the time, your Honour – but if the court did not have jurisdiction to reopen, then it is a good question as to what follows from that.

GLEESON CJ:   Yes, and, of course, if this Court were to grant special leave to appeal and simply consider some of these grounds on their merits, in a sense it would render that irrelevant, that this Court would just be hearing another criminal appeal.

MR SEXTON:   Yes.  My learned friend would presumably say – he can speak for himself, your Honour – that it could not go to another Court of Criminal Appeal in these circumstances, that there is a problem about the first judgment and there was a problem about the first judgment although we say not a substantial one and he says there is a problem about the second judgment as well.  So you have to ‑ ‑ ‑

GLEESON CJ:   He raises the problem about the first judgment in ground 1 on page 514 and, of course, that depends upon whether the evidence they took into account that was not in evidence was material.

MR SEXTON:   Yes, and significant.

GLEESON CJ:   All right.  Thank you, Mr Solicitor.  Yes, Mr Barker.

MR BARKER:   Your Honour, as to ground 1 in the first appeal and my friend’s assertion that none of this mattered, could I just take you briefly to volume 2, page 404 of the first judgment where some of this material is recited.  I will not read it out but your Honours can see the obvious significance of it at paragraph 109, line 20, page 404.  Then over to 405 you get onto evidence which was not led about highlighting in a road directory.  If you go to the foot of page 405 you see a reference to the material which you see on page 404. 

Then the problem is aggravated by a finding which goes perilously close to a finding of credibility and that is on page 422, line 30.  It relates to the material I took you to on the previous pages but we then have an assertion that “this account is not convincing”.  So it is difficult, in my submission, in the light of that sort of evidence to conclude that this did not have some impact upon the deliberations of their Honours in dismissing the appeal.  If your Honour pleases.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take in this matter.

AT 10.22 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.29 AM:

GLEESON CJ:   Mr Barker, could I invite you to turn to page 519 which is the draft notice of appeal in your first application and 544 which is the draft notice of appeal in your second application.  We intend to dismiss this application insofar as it is based upon grounds 2, 3, 4 and 8 in the document that commences on page 519 which I think, correct me if I am wrong, would correspond with grounds 3, 4, 5 and 9 in the document on page 544.

MR BARKER:   Yes.

GLEESON CJ:   We intend to grant the application for special leave to appeal insofar as it is based upon ground 1 on page 519 and grounds 1 and 2 on page 544.  As to the remaining proposed grounds of appeal, which I will describe generally as the Shepherd grounds, and the unsafe and unsatisfactory grounds, what we have in mind, subject to any comment counsel may want to make, is to refer the application, insofar as it is based on those grounds, into the Full Court that hears the appeal in respect of which we have already said we would be minded to grant special leave, thereby leaving it to that Full Court to decide whether to deal with those remaining grounds as applications for special leave or whether to hear full argument as on appeal or possibly to refer them back to a differently constituted Court of Criminal Appeal depending upon the outcome of your Grierson point.

MR BARKER:   Yes, I understand.

GLEESON CJ:   Is there any comment you would want to make on that course?

MR BARKER:   No, your Honour.

GLEESON CJ:   Mr Solicitor?

MR SEXTON:   No, your Honour.

GLEESON CJ:   All right.  Just check that what I am about to say reflects what I foreshadowed.

These applications for special leave to appeal insofar as they are based on grounds 2, 3, 4 and 8 in the draft notice of appeal commencing at page 519 of the application book and grounds 3, 4, 5 and 9 in the draft notice of appeal commencing on page 544 of the application book are dismissed on the ground that we think there are insufficient prospects of success of an appeal to warrant a grant of special leave.

Special leave to appeal is granted in respect of ground 1 in the document commencing at page 519 of the application book and grounds 1 and 2 in the document commencing at page 544 of the application book.

In relation to the remaining grounds of appeal, the applications for special leave to appeal are referred to the Full Court which will hear the appeal in relation to the grounds, the subject of the grants of special leave already identified and, as I say, it will be for that Full Court to decide whether it wishes to deal with those remaining grounds on a special leave basis or on a full argument basis or perhaps even, depending on the outcome of the jurisdictional questions, to remit the matter.

We will adjourn for a short time to reconstitute.

AT 10.35 AM THE MATTER WAS CONCLUDED