CBL v The Queen

[2015] HCATrans 89

[2015] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B24 of 2014

B e t w e e n -

CBL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 17 APRIL 2015, AT 1.13 PM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If it please the Court, with MR N.V. WESTON I appear for the applicant.  (instructed by Howden Saggers Lawyers)

MR M.R. BYRNE, QC:   May it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Qld))

KEANE J:   Yes, Mr Callaghan.

MR CALLAGHAN:   Your Honours, the applicant seeks to raise a point that was not raised at trial nor was it raised in the Court of Appeal and the respondent fairly points out that means we face the considerable difficulties that arise when those circumstances exist.  However, there is one aspect to the late arrival of the argument which is important.  It arises really because of the arguments that can be made against us, perhaps most clearly articulated at page 234 of the application book in paragraph 3.15 of the respondent’s summary of argument. 

In essence, the argument put against us is the jury has found that each of the accused was involved and, in those circumstances, the Crown should not have to say who did what.  I am paraphrasing, but that is the essence of the argument put against us.  But, of course, whatever strength might have been derived from what could have been inferred from the verdicts of the jury and particularly the verdicts returned in respect of the co‑accused is no longer there because those verdicts have been set aside.  The case against her was flawed and a retrial has been ordered. 

So no significance, we submit, can now be attributed to those verdicts and that means we are left in the situation where mutually exclusive factual propositions were left to the jury in the alternative and there is no way of knowing, in the absence of any direction about unanimity, whether the jury was, in fact, unanimous in respect of any conclusion that led to the convictions of the applicant. 

It is well accepted that a jury might be instructed in terms that allow individuals to arrive at a – or individual jurors arrive at a conclusion of guilt by way of different routes.  It will always, of course, depend upon the nature of the case as to whether that can occur.  But given that we accept it can occur, we also submit it is a proposition that must be addressed in each case with some caution.  The circumstances of this case demanded a high degree of that and it was not exercised. 

This was not one of those cases where it was alleged, for example, that each accused was a party to a plan to an assault and/or had an intention to kill.  Nor was it a case in which could be proven that two people were in a particular place at a particular time at which a particular act or omission occurred.  The evidence very much allowed for the proposition that, while there was a very different case to be made against each accused, as regards this applicant there was certainly evidence that he was not present at all of the times that might have been relevant to the commission of the offences. 

So on that basis, and because the jury were not told that they had to be unanimous about the basis of the conviction, it is impossible now to be satisfied that they were unanimous about anything which could sustain the convictions against the appellant.  Because it was put in the alternative, a conviction of guilt about the appellant might well have been returned on the basis of something that the jury, or some of them, found had been done by his co‑accused.  So the verdicts against him could never be regarded as safe in the absence of a direction that might have made them safe.

KEANE J:   The position is that not only was this point not taken in the Court of Appeal; it is also the case, is it not, that the directions, which it is now said should have been given, were not sought at trial?

MR CALLAGHAN:   That is so, your Honour, yes.

KEANE J:   As I think you acknowledged at the outset that means that you are really in the realm of needing to show exceptional circumstances.  In Crampton’s Case, for example, exceptional circumstances were shown on the basis that the error of which complaint was made was of a kind that, if it were established, the applicant for special leave could not properly have been convicted. 

Now, in this case it is very difficult to see that it can be said that even if there were a deficiency of the kind for which you contend that it can be said that that error means that your client could not properly have been convicted.  It was a strong case against your client.  The reasons of the Court of Appeal dealing with the grounds of appeal that were agitated before that court show that this was a strong case against your client.

MR CALLAGHAN:   There was a case against the applicant that could be described as strong, but there was also, your Honour, a case against his co‑accused, particularly, for example, in respect of the offences of violence, that could also be regarded as strong.  A juror or jurors may have convicted the applicant on the basis that the co‑accused was the person who committed the act or the omission that constituted the offence and convicted the applicant on the basis that he was a party to that offence, but it is now an exceptional circumstance that the verdict against the co‑accused and the findings that you might assume flowed from that – or underpinned that verdict are no longer of functional significance.

It has become an exceptional circumstance since the judgment of the Court of Appeal and since the effect of that.  That is how we say there is an exceptional circumstance and it is an unusual situation in as much as we do say when you look at the verdicts now you cannot say that any of them is safe for the reasons explained.  Normally the consequence that would flow from that would be the request for an acquittal, but as your Honour, with respect, points out, there is a powerful case to be made against the applicant.  It is an exceptional way in which this issue has arisen, and so the relief sought would be simply to join the retrial that has already been ordered in respect of the co‑accused.

KEANE J:   Can I also raise this with you, Mr Callaghan?  The point, not having been raised at trial in the sense that the direction which it is now said should have been given but which was not sought is the sort of – or the decision not to seek that direction is the sort of decision that could well, none of us know, but could well reflect a tactical decision on the part of the applicant’s counsel at trial to refrain from seeking such a direction on the basis that he could have been expected to lead to the judge directing the jury in terms which focused on the evidence which bore on his primary responsibility for the crimes, especially given the strength of the case and his relationship to his co‑accused.  Now, given that the failure to seek the direction looks like the sort of decision that could have been tactical, why would we give special leave to agitate this point now when the proper time to raise it was with the trial judge?

MR CALLAGHAN:   I take your Honour’s point and if it was purely a complaint now about the failure to give the direction, your Honour’s point would have me searching for a response, but there is this exceptional consequence that has flowed as a result of the judgment from the Court of Appeal which could not have been anticipated – could not conceivably have been a part of any tactical decision.  

What we say now is had the direction been given, we would not be in this situation where we are really looking at our ground 2 of the proposition that the evidence in this record cannot actually support the convictions because you cannot impute anything to any other conclusion of the jury about the co‑accused.

So what your Honour has put to me is, with respect, a powerful argument against the mere complaint against the failure to seek the direction in respect of which we were always going to have a difficult time anyway, but the argument has, we submit, moved on, and there is nothing else that occurred in the trial that could cure the difficulty.  The arguments made against us, for example, that in respect of count 10 there was a direction about unanimity – I am speaking here about the argument that is made in 3.12 on page 233 of the application book - we would respectfully submit

that there is another side to that proposition and that the giving of that direction might have had what we will call an expressio unius effect and implied, indeed, the lack of need for unanimity on the issue about which we principally complain. 

So, as it has all turned out, the failure to give the direction was not, to use the phrase that is adopted in some of the authorities, a matter of legal indifference.  It is not open to suggest that to insist upon the direction was to ask for an impossible standard.  The standard is what it is and cannot be lowered to accommodate the evidence that is available to meet it.  In all of the circumstances, if the Court understands there is to be a retrial of the co‑accused then the submission is that the applicant should be a part of it, for the reasons explained.  Those are our submissions.

KEANE J:   We need not trouble you, Mr Byrne.

The lack of direction, of which the applicant now seeks to complain, was not raised at trial nor before the Court of Appeal.  Considerations of finality in litigation mean that in such a case this Court’s discretion to grant special leave to appeal will be exercised in favour of an applicant only in exceptional circumstances.  There are not sufficient exceptional circumstances favouring the grant of special leave to appeal in this case.  Special leave, accordingly, will be refused.

The Court will now adjourn until 10.15 am on Tuesday, 5 May. 

AT 1.29 PM THE MATTER WAS CONCLUDED