Carter v The Queen

[1998] HCATrans 374

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P44 of 1997

B e t w e e n -

LOUIS JAMES CARTER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 22 OCTOBER 1998, AT 12.20 PM

Copyright in the High Court of Australia

MR W.S. MARTIN, QC:   May it please the Court, with my learned friend, MR C.A. SHARP, I appear on behalf of the applicant.  (instructed by Freehill Hollingdale & Page)

MR J.R. McKECHNIE, QC:   If your Honours please, with my learned friend, MR M. MISCHIN, I represent the Crown.  (instructed by Director of Public Prosecutions (Western Australia))

GAUDRON J:   Yes, thank you.  What is this that I have just received?  Applicant’s supplementary submissions?

MR MARTIN:   Yes, your Honours, they were written submissions, just additional.  I will speak to them if that is a convenient course, if your Honours have not had the chance to digest them.

GAUDRON J:   Of course we have not.  It does seem to be ‑ ‑ ‑

KIRBY J:   If you would like us not to listen to you - - -

MR MARTIN:   No, your Honours.

KIRBY J:   I thought you might have not.

GAUDRON J:   It is not strictly in accordance with the rules, is it, and the rules are made to enable the efficient disposition - - -

MR MARTIN:   Your Honours, can I say there is nothing in them that was not in the written submissions.  They are simply a fuller version of what I am going to now, hopefully, tell your Honours.

KIRBY J:   You are not pressing the Ghosh point, I understand.

MR MARTIN:   No, your Honour.

KIRBY J:   Why is that?

MR MARTIN:   We accept that Peters has precluded that argument.

KIRBY J:   Is that on the proviso?

MR MARTIN:   No, it is in relation to the direction.  We accept that inconsistently with Peters, his Honour’s direction to the jury was not in our ‑ ‑ ‑

GAUDRON J:   You accept it was more favourable than you would have got under a Peters’ direction?

MR MARTIN:   No less favourable, your Honour.

KIRBY J:   If it was less favourable than a Peters direction, and if Peters states the law, why are you throwing that ‑ ‑ ‑

MR MARTIN:   No less favourable, your Honour.

KIRBY J:   No less favourable.  I thought it was “no, less favourable”.

MR MARTIN:   Sorry, your Honour.  Your Honours, the critical and central issue in relation to which we seek leave is the question of the principles that govern the determination of whether a long and complex criminal trial such as this has miscarried due to a combination of the sorts of factors that tend to be present in such trials.  Those are principles that have never received the attention of this Court, although they have received the attention of intermediate appellate courts in Australia and in the United Kingdom, and significant academic commentary, some of which we have included, including a major report from the AIJA.

The determination of those principles would lie at the heart of this appeal if leave was granted and, in our submission, they are issues of public importance.

GAUDRON J:   What do you say those principles are?

MR MARTIN:   The principles have been formulated in two different ways; one in the Blue Arrow Case where the question was posed, and we would respectfully adopt this interpretation, the question whether, in combination, the various elements of the trial have combined to destroy what has been described as the basic assumption upon which those trials are conducted – described by the English Court of Appeal in The Queen v Cohen, the Blue Arrow Case, as “the assumption that a jury determining guilt or innocence upon evidence which they are able, as humans, both to comprehend and remember, and upon which they have been addressed at a time when the parties can reasonably expect the speeches to make an impression on the deliberation.”  So, there are really two aspects of it:  the ability to comprehend the evidence and, secondly, the sequence of events enabling addresses to have an impact upon the deliberation.

In Australia the Victorian court has put the test rather more tersely in terms of whether there was a real danger that the jury failed to perform their function properly.  That enunciation of the test would, of course, require elucidation of just what elements one looks to to enable to determine whether or not the jury has, in fact, performed that function properly.

KIRBY J:   The Crown’s final address was six weeks, was it?

MR MARTIN:   Indeed, your Honour.

KIRBY J:   Extraordinary.

MR MARTIN:   That, in our submission, is a critical feature of this case - just the timing alone.  It was more than four months between the completion of the evidence and the retirement of the jury; eight weeks between the completion of the evidence and the commencement of the address of counsel for my client; then another two months between the completion of that address and the retirement of the jury; six weeks of which was spent with a very vigorous address from counsel for the Crown going through many of the 15,000‑odd exhibits; going through much of the transcripts of the evidence given by my client to the McCuster Inquiry; putting inferences, and drawing inferences out of that material in a very detailed way, inferences that had never before been put or elucidated or enunciated and, of course, at a time when counsel for my client was no longer to be heard, drawing, of course, upon some eight months or so of evidence.  That, in itself, is a very significant feature of this case.

KIRBY J:   But the co‑accused got an ultimate address?

MR MARTIN:   The co‑accused got an ultimate address.

KIRBY J:   How long did the co-accused speak for?

MR MARTIN:   About eight days, I think, your Honour.  He, of course, was unrepresented and, quite expectedly and reasonably, directed attention to the aspects of his case.  His case was, of course, quite different in nature to my client’s case.  My client was the auditor, whereas the co‑accused was a company director, and the issues involved in the auditor were very different in nature.

KIRBY J:   But ultimately the running of a trial, especially a complex trial like this, is in the discretion of the primary judge, and we can say what we like, but ultimately that is the reality, and this judge weighed up your application and came to the conclusion that the ordinary rules must or should be applied.

MR MARTIN:   If, with the benefit of hindsight, having looked at the trial in its totality, including a combination of all these factors, one can say the outcome of the exercise of that discretion was such as to pose a real question as to whether, when the jury retired, they could, in the terms of Blue Arrow, as human beings, bring to mind the evidence that they had heard over such a long period, and bring to mind the addresses, particularly the address of counsel for my client.

The problem, of course, was that having heard six weeks of address from the Crown Prosecutor some two to three months after the closure of the evidence, that which they took in their minds with them into the jury room, or indeed, they did not in fact go into the jury room, they retired in the court, because the exhibits were so bulky, they could not fit into the jury room, but that which they would have taken in their minds is not the evidence.  There is a very real danger that they were taking in the inferences that had been put to them by counsel for the Crown rather than the evidence itself.

McHUGH J:   But your submission in the end seemed to come to nothing less than an argument that a trial that would go this length cannot be tried by a jury.

MR MARTIN:   With respect, no, your Honour, we do not put that proposition.  We expressly disavow that proposition.

McHUGH J:   I know you do, but the points you rely on is you have 15,000 exhibits, 12,500 pages of transcript, 14 months trial, 176 Crown witnesses, the jury not there on 143 days of the trial, taken up by legal argument, I assume.

MR MARTIN:   That and other things.

McHUGH J:   Other matters.  Those broad factors are likely to be fairly common in these long commercial trials, commercial criminal trials.

MR MARTIN:   Your Honour, that is the canvass upon which we paint a quite separate picture, and that is the picture that arises from the combination of other factors that were quite distinct to this trial.

KIRBY J:   But we could not really understand your arguments, could we, unless we really went deeply into the facts and understood the significance of a six-day Crown address and so on.  The idea of plunging into all these facts is really ‑ ‑ ‑

MR MARTIN:   I can understand that would be a disincentive but it is not necessary to go, for example, to every page of the six weeks of address for counsel for the Crown.  It would be possible during the hearing of the appeal for your Honours to gather a flavour of that address from selected excerpts from a consideration, perhaps, of one or two days of it.

If I could return to your Honour Justice McHugh’s point:  it is not those matters that we primarily rely upon.  It is that is the canvas upon which all the other factors that we identify we say should be brought to account, including the overloading of the indictment, the charging of conspiracy in conjunction with substantive charges.  The conspiracy was laid over exactly the same time period as the substantive charges.  The substantive charges themselves were of concurring in the publication of precisely the same statements that were the subject of the conspiracy charge.

On an earlier application to strike out the charges for duplicity it was held that concurrence might mean something different from agreement, and that therefore the charges were not duplex.  So the jury then had to ‑ ‑ ‑

GAUDRON J:   They are not duplicitous because the allegation of conspiracy was conspiracy to defraud, was it not?

MR MARTIN:   Certainly the allegation was conspiracy to defraud by publishing the false statements that were precisely the subject of ‑ ‑ ‑

GAUDRON J:   Yes, but there is an extra element to it.

MR MARTIN:   The intent to defraud although, of course, there was a mental element required in the concurrence of the publication of false statements, namely the knowledge, of course, and intent to deceive.

KIRBY J:   In Mr Barker’s submission to the judge for, as it were, a last say, did he cite the English decision which you cited to us, which sounds to me, on the face of things, to be correct in principle?  In other words, are we tendered a neat question that the primary judge did not accept that principle?

MR MARTIN:   Certainly Blue Arrow had been cited to his Honour.  I cannot now recall if it was cited in the context of the application for the last say, but certainly there were a number of applications to discharge the jury in which all the cases in this area, including notably, Blue Arrow, Higgins, and Grimwade.

KIRBY J:   But we are not really concerned with those, are we?  We are concerned with the suggestion that with a six‑week intervening address, and then the eight‑days address…..could not have remembered - - -

MR MARTIN:   That is certainly a key aspect of it, your Honour, but there were other aspects, including the overloading of the indictment.  In particular, the nature of the task that was to be undertaken by the jury ‑ ‑ ‑

GAUDRON J:   I do not think you should refer to it as “overloading of the indictment”.  That is a question‑begging phrase.  It is the combination of the substantive offence with the conspiracy.  For my part, I would not think that there was any overloading involved in that situation.

MR MARTIN:   Your Honour, this Court and other courts have repeatedly said that the combination of the conspiracy charge with substantive charges covering the same ground is a course to be disparaged, and only undertaken in most exceptional circumstances.  Those statements by this and other courts do not seem to be recognised by prosecutors, and this is one of those cases in which there appears, in our submission, no satisfactory reason.

GAUDRON J:   Because of the additional element, namely, to defraud.

MR MARTIN:   The intent necessary in order to make out the substantive charges required an intent to deceive which, in the circumstances of this case, was, in our submission, substantively identical to the requirement of their finding of an intent to defraud.

The jury, themselves, enunciated this difficulty that often arises in one of the questions that they asked the trial judge after their retirement, when they came back with a question and they said that they were concerned that a finding of guilt on any of the substantive charges required them also to find the accused guilty on a conspiracy charge.  So they clearly enunciated the difficulty of distinguishing between ‑ ‑ ‑

GAUDRON J:   It sounds as though they understood and remembered perfectly well what was in issue in the trial.

MR MARTIN:   With respect, no, your Honour.  What they were revealing was that they did not understand the difference - how they could find the accused guilty on the substantive charges but not guilty on the conspiracy.  The key issue they had to address was the question of knowledge and intent on the part of my client, and the grave difficulty they had when they retired was that the evidence had not been conveniently identified for them, but went to that topic.  What they had was a vast array of evidence that went to the objective falsity of the accounts.  From that they were left to themselves to winkle out what was the evidence of my client’s knowledge and intent.

Of course, because my client was denied any opportunity for a short opening address, the jury were not even enlivened to the fact that that was their key task in relation to my client, until such time as Mr Barker got to address them almost a year after the trial had commenced.  So then, in the light of that address, they then had to go back and try and rethink about the 176 Crown witnesses they had heard, and try and ascertain which of them were giving evidence that went to the question of knowledge and intent.

KIRBY J:   In Victoria it seems to be quite common, I have noticed in the transcripts we have got, to allow the Crown and the accused a little speech at the opening.  That is not the practice in this State?

MR MARTIN:   It varies from judge to judge.  Some judges allow it and some judges do not.

KIRBY J:   It would have seemed highly desirable in this case when there is the question of whether or not – I mean, who would interfere with a judge with the command of a case of this kind.  I mean, it is an enormous burden.

MR MARTIN:   Indeed.  It was, your Honour.  But what we say is when one brings into combination, into cumulative effect, all these factors:  the denial of a chance to give an opening address; the denial of the chance to address after counsel for the Crown had addressed, you get a trial that really was most unsatisfactory and in which there really was a very real danger that the jury failed to perform their function properly.

KIRBY J:   Are you still relying on the point about Mr Connell’s death and the adverse subsequent publicity.

MR MARTIN:   Indeed, your Honours, it is our submission that really there are two special leave points.  Firstly, there is the general point about the process in the trial, and secondly, the adverse publicity.  If I could, perhaps, move to that point.  It has a particular piquancy in this case because, of course, it occurred after the jury had been empanelled, some five months into the trial, after Mr Connell had, of course, been representing himself, and through that means became quite well known to the jury and, of course, his unexpected death had a profound impact on them.  Because they were already empanelled it is to be expected that they would have had particular regard to that media publicity.  As the Court of Criminal Appeal found, that publicity was quite extraordinary in its nature.

KIRBY J:   Presumably the judge gave very clear directions.

MR MARTIN:   He did, your Honour, but the question is whether this is one of those cases in which those directions were capable of overcoming the very significant prejudice suffered by the applicant.  Both the trial judge and the Court of Criminal Appeal brought to account in the evaluation of that exercise the question of the cost to the public that would be incurred if a trial that had already proceeded for five months was aborted and required to start again.  In our respectful submission, that is an error of principle.  Either there is a real danger that the jury would be adversely affected by the media publicity, a danger that could not be adequately cured by an appropriate direction.  If there was such a danger then cost is irrelevant.  If there was not such a danger, than equally, cost is irrelevant. 

So, in our submission, whichever way one determines the critical question which was whether this extraordinary publicity, quite unprecedented, and the prejudicial effect it had, recognised both by the trial judge and the Court of Criminal Appeal, could be adequately cured by an appropriate direction.

That is another factor that can be considered either in isolation or as a part of our overall submission to the effect that when one looks back at this trial, looks back, for example, at things like the McCusker transcripts, days and days and days of material read to the jury in the witness box and then again gone through at some considerable length by counsel for the Crown during his closing address after, of course, we had had our say.

One looks at the reception into evidence of the entirety of the audit files.  Documents, themselves, occupied an entire trolley, but which included within them documents in respect of which there was no suggestion that my client had had any part in their creation or had ever seen them because the audit files, as your Honours would expect, were prepared by a group of auditors, and not all of the documents were seen by my client.  They were not relevant to the question of objective falsity.  They could only be relevant and admissible to the question of knowledge, but they were receive en bloc without any attempt being made to identify just which of the documents were established to have been seen by my client and which, therefore, the jury could use for the ascertainment of the critical question of knowledge and intent.

The jury was simply left with all of those audit files in the courtroom to try and work that out for themselves.  Similarly, in relation to the differentiation of the evidence admissible against the different parties, they were left with a list of 1,530 of the 15,000 exhibits that were not admissible against either accused.  They were again left to winkle out for themselves which of those exhibits they should exclude from their considerations.

Your Honours, this is not a case where we say simply the length of time and the complexity of the issues caused the trial to collapse.  This is a case in which we say that is the matrix against which these additional factors fall to be considered.

KIRBY J:   How is a 14‑month trial to be understood in its entirely, and the judge was exercising his discretion knowing all that, to be absorbed by us in the space of the time we would normally devote to it?

MR MARTIN:   There are visual aids; your Honours may have seen some of them that we have provided, in terms of the colour charts that identify the course of the trial.  It will not be necessary for your Honours to go into all six weeks of the Crown address.  As I say, your Honours can get the flavour of that quite shortly and succinctly.  The issues with respect to the digestion of the evidence, the audit files, for example, it will not be necessary for your Honours to look at the trolley of audit files.

McHUGH J:   But the ultimate issue is really a guess.  That is the only way you can describe it as to what effect the length, complexity of the material, and other matters were likely to have had on the jury.  The Court of Criminal Appeal took one view about it.  Why should this Court seek to second‑guess it?

MR MARTIN:   Because, your Honour, it would provide the opportunity for enunciation of the test.

McHUGH J:   I do not think there are any tests apart from some blanket rule that would be of any assistance whatever.  Either one deals with these cases ad hoc, or one lays down a once‑for‑all‑type principle.  You just cannot have a case of this nature.  Full stop.

GAUDRON J:   And any of the tests would seem, really, to undermine the ultimate authority and integrity of the jury in a situation which a trial judge has found that the matter can adequately be dealt with by directions.

MR MARTIN:   In our submission, this case would provide the opportunity for guidance to be given as to the steps that ought be taken in trials of this kind; for example, the exercise of the discretion in favour of allowing an opening address; for example, clear directions as to the segregation of the evidence into that which goes to the evidence of matters of knowledge and intent, and that which goes to objective falsity.

McHUGH J:   They are matters of discretion.  It was well within the trial judge’s control, and one thing we do know about this case is that not all jurors were affected by this material because there were majority verdicts on counts 1, 4 and 7, on the conspiracy to defraud count and on two of the concurring in the publication of false statements.

MR MARTIN:   There are different inferences that can be drawn from the fact of majority verdicts.  There are lots of different ways one can look at that.  In our submission, it would not be safe to draw an inference from the fact that some jurors appear to have dissented in some verdicts, that there was a clear comprehension of the issues, particularly when regard is had to the questions they posed.  They were plainly having grave difficulty in relation to the issues of knowledge and intent, and got no clear assistance, with respect, from his Honour in relation to just what material they should go to.  Their task was impossible by that stage because they were in a room with 40,000 pages of exhibits.  They had not been told that those were the clear issues until almost a year into the trial, two months after they heard the last witness.  So, all the evidence had gone by, a sea of evidence had gone by, without them realising that those were the key things that they ought to be looking to.

Add to that the prejudice suffered by my client in terms of the guilt by association through the publicity, through the key aspect of his defence, namely his reliance upon Mr Connell as a respected businessman, a very successful businessman – all of that blown away by the extraordinary publicity that occurred during the course of the trial.  It is a lot more than guesswork, in our submission.  It is the enunciation of a principle that would in turn lead to, in our submission, an inevitable conclusion that this is one of those cases in which it can be said with confidence – like in Grimwade - that there was a real danger that the jury were unable to perform the function charged upon them.

KIRBY J:   But going back to Justice McHugh’s earlier point, even if one had reservations about the refusal of the judge to permit an opening address, and a refusal to allow some short reply, even if you had your own views that it would have been better in retrospect if this had all been done, especially in the light of Mr Connell’s death and so on, in the end any principle which we would enunciate would not really be helpful because this was a unique case.  It was a 14‑month trial, 176 Crown witnesses, and all those other features, and Mr Connell dying in the middle of it.  I mean, when is that all ever going to recur?

MR MARTIN:   In relation to the length and complexity, that unfortunately is not unique.  There are a number of other cases around Australia that are comparable to this.  The death of one co‑accused is a unique event, and that is why I separate out the publicity question as possibly being discrete from the other issues.  But, the other issues concerning knowledge and intent and the need to identify within the morass of documentary evidence in cases of this kind, just what material goes to those issues in such a way that the jury can intelligently understand what their task is and what materials they use for the performance of that task, those are issues that are common to these

big commercial trials that do occur around Australia with a degree of frequency.  Those are issues that would, in our submission, be of recurrent application and in which guidance would be of great assistance to judges who are charged with this very considerable task.  They can then use the guidance of this Court as to how they should exercise their discretion on the various issues that arise for their consideration. 

What we would be putting, of course, is that when one sees at the outset that this is going to be a difficult trial, the approach of a trial judge ought properly be to chart a course at the outset of the trial to determine how the trial can end up in a way that is fair to the accused, and that may involve the regular exercise of discretion in favour of the accused, not by discrete compartmentalisation of those issues and the application of conventional principles to them.

GAUDRON J:   We think we understand you.  Your time is up.

MR MARTIN:   Yes.  May it please your Honours.

GAUDRON J:   Yes, we do not need to hear from you, Mr McKechnie.

In this matter the Court is satisfied that there has been no substantial miscarriage of justice and, accordingly, special leave is refused.

The Court will adjourn shortly to reconstitute. 

AT 12.45 PM THE MATTER WAS CONCLUDED