Cesan v The Queen; Rivadavia v The Queen

[2008] HCATrans 191

[2008] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S503 of 2007

B e t w e e n -

RAFAEL CESAN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S531 of 2007

B e t w e e n -

RUBEN MAS RIVADAVIA

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2008, AT 12.03 PM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR H.K. DHANJI, for the applicant in the first matter.  (instructed by Kessels Goddard & Ajuria)

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear with my learned friend, MS A. FRANCIS, for the applicant in the second matter.  (instructed by Legal Aid Commission of NSW)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR L.K. CROWLEY, for the respondent in both matters.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours have seen that there is an interaction of State and federal statutes by which the District Court had jurisdiction to conduct this trial. In our submission, over and above that there is of course section 80 of the Constitution, which includes a reference to a process which is inexorably judicial. The supervision of the judge in relation to the trial process and, in particular, the interaction with the jury throughout and at critical junctures led to the observations by Justice Basten in dissent in the Court of Criminal Appeal, found in the application book at page 158 going on to page 159.

The facts in this case which lend themselves to the summary set out by Justice Basten on pages 140 to 141 of the application book show that matters had occurred sufficiently obviously for there to be no speculation as to whether the jury or jurors had noticed them which amounted to, put bluntly, the judge falling asleep from time to time – not microsleeps and not so unusual as to be regarded as anything in the nature of one-off, trivial or de minimis.

Naturally, it being of the most untoward and odd kind of event in a criminal trial, the official record does not permit what might be called timing of the absences, but the findings of fact made in the Court of Criminal Appeal, summarised by Justice Basten after very detailed consideration of the evidentiary material, in the five numbered propositions on pages 140 and 141 of the application book make that an abiding, clear, unavoidable impression as to the nature of the trial process here.

The two matters that Justice Basten touched upon as being matters of a real possibility concerning the core of the process of trial by judge and jury, noted on page 159 of the application book, necessarily involved what may frankly be called speculation about the effect that this undoubted, clear, visible impression of a sleeping judge may be an audible impression, at least once, might have had in the jury room, but the inviolability of deliberations in the jury room mean that though it might be characterised against us as speculation it is rather to be seen as one of those matters referred to by your Honour the Chief Justice in paragraph 7 of Nudd’s Case where, cataloguing possibilities of miscarriage, your Honour noted that the concept was as wide as the potential for error; second, for our purposes, that it is wider, for not all miscarriages involve error – a matter to which I will return for this application – and, third, for our purposes, that another form of miscarriage is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just.  Finally, for our purposes, still from paragraph 7 in Nudd, another species of miscarriage is a failure of process which departs from the essential requirements of a fair trial.

GLEESON CJ:   Mr Walker, if there were a successful appeal and a new trial, would the letter referred to in paragraph 176 on page 183 be admissible in evidence against your client?

MR WALKER:   The arguments that occur to the contrary of that would all be based upon discretionary considerations.

GLEESON CJ:   According to Justice Grove, that letter plainly acknowledges your client’s guilt.

MR WALKER:   Yes, that is what Justice Grove said.

GLEESON CJ:   Where is an appellate court left in a case where the appellant says, “I have not had a fair trial, there has been a miscarriage of justice, but I acknowledge my guilt”?

MR WALKER:   Effectively, by which I mean in truly, legally, the same position as the Court spoke of in paragraph 45 of Weiss, because the description of that position is as follows:

Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt.

GLEESON CJ:   I was really talking about an acknowledgement of guilt after trial and conviction.

MR WALKER:   I understand that, your Honour, but in our submission this is, a fortiori, where the examination of the record required by the proviso and Weiss satisfies the appellate bench that evidence properly admitted proved guilt and that is the highest possible outcome of a judicial approach to what might be called what should happen at a retrial if there were one, particularly bearing in mind that with the error or other miscarriage being considered for the purposes of the proviso the appellate bench has reached the position of satisfactory proof.

If in paragraph 45 of Weiss that is nonetheless a position which can produce the need for a retrial, subject to the matters of kind or quality to which I have to come, then it cannot make a difference in this case that, subsequent to trial, material is brought into existence which the Crown may or may not (a) choose to tender, (b) successfully tender.  It cannot be worse for us than the ultimate detriment suffered by an accused in an appellate court – namely, proof beyond reasonable doubt to the satisfaction of the appellate bench of guilt.

The new material created by the letter to the judge from my client has not yet played any role in any matter of proof and for those reasons cannot go beyond what is the outcome of an accomplished exercise of considering what proof ‑ ‑ ‑

HEYDON J:   For the record, you would presumably reserve the correctness of Justice Grove’s characterisation of that letter.

MR WALKER:   Yes, it is true that Justice Grove said that and it would be fatuous for me not to concede that that is a view that could seriously be put about the document.  It is certainly not a view that we are in a position to concede or would concede.  The process of adjudication of criminal guilt is not accomplished by out‑of‑court admissions.  When I say “out of court” I mean outside of the formal processes of a trial.  Out‑of‑court admissions are simply grist to the evidentiary mill.

GLEESON CJ:   At the very least, however, it adds an interesting twist to the facts.

MR WALKER:   Now, it adds this, in our submission, and if not unique, it is certainly remarkable in this regard.  I am in the position where we say for the purposes of special leave that the nature of the case, which includes our concession below that we could not point to error – certainly it is a concession I make for these purposes – we could not point to error in the admission of evidence, we could not point to error in the summing‑up, and we have what might be called a strong case against us and we have the extraordinary communication by my client before sentence.  That, in our submission, means that this is the ideal, the perfect vehicle, to test the nature of the cases which are under contemplation in paragraph 45 of Weiss.  We accept there can and should not be any a priori, exhaustive taxonomy or classification of what those cases are and, in any event, it would be a self‑defeating exercise because one would then be later construing judicial labels where the statutory words suffice. 

What we can say is that in the case-by-case working out of the availability of those cases, where proof has successfully been made to the satisfaction of the appellate bench of guilt but nonetheless the appeal should be allowed because of miscarriage, that cases such as my clients present are perfect vehicles because they have already ready-made, without any need for factual debate, the proposition that only the quality or kind of the miscarriage in question, including in light of section 80 requirements, can bring about what would otherwise be the emphatic and straightforward application of the proviso to dismiss the appeal.

GLEESON CJ:   I thought we might be assisted to hear from Ms Abraham at this stage.

MS ABRAHAM:   Your Honours, there is no doubt that the conduct that brings the case to this Court is regrettable, but in the respondent’s submission that is not enough, and indeed in the respondent’s submission there is no basis for the grant of special leave, and it is important in considering that to consider the context of this case because while my friend suggests this is the ideal vehicle, in the respondent’s submission it is quite to the contrary.  We have a case here where the circumstances are that counsel did nothing during the course of the trial.  It was not called on appeal, and that is counsel or solicitor for either of the respondents.  We have a case where ‑ ‑ ‑

HEYDON J:   But not called to give evidence.

MS ABRAHAM:   Yes.  I note that Justice Basten ‑ ‑ ‑

GLEESON CJ:   You are not suggesting, are you, that counsel deliberately did nothing and let this situation arise for the purpose of having available an appeal point?

MS ABRAHAM:   No.  There is no evidence as to why counsel did or did not allow the situation to occur.  The counsel may well – and I accept there is no evidence – have thought there was some advantage, not to keep an appeal point up their sleeve but an advantage in having this particular judge.

GLEESON CJ:   I have not followed that.

MS ABRAHAM:   Your Honour, there is one thing to not take a point to keep an appellate point available – in other words, I do not object so I can keep it up my sleeve and use it in due course.  There is a different situation of making a forensic decision that I am not going to complain about this conduct because we want this trial judge.  There was some evidence, albeit one step removed, from one of the witnesses in an affidavit, that she had spoken to the solicitor and part of the response at least included that – and these are my words, it is my interpretation of what is said – that, in effect, “This is a good draw for us”.

GLEESON CJ:   I may not have read the reasons with sufficient care, but I did not think that formed part of the reasoning of the majority in the Court of Appeal, did it?

MS ABRAHAM:   It is not stated, no, because there was no evidence.  But your Honour asked me as to the circumstances and was I suggesting that it was being withheld, in effect, I took it, for the purpose of having a later appeal, and my response needs to be seen on the basis there are two aspects of not objecting at the time and indeed not being called.  The bottom line is they were not called to give evidence, so there was no evidence before the court as to why counsel or solicitor did not do something during the course of the trial.  That is important, with respect, in this case where the majority found that three counsel would not have allowed this situation to occur and would not have allowed anything of any significance to occur without bringing it to the attention of the trial judge.  That finding cannot – and is not challenged.

My friend has quite properly conceded, of course, that there is no omission or error in any of the directions in this particular case.  There were full and clear directions given to the jury.  Indeed, in relation to both applicants the evidence is compelling and indeed in relation to the applicant, Cesan, there is the letter which, in the respondent’s submission, not only acknowledges a fair trial, which he accepted at the time ‑ ‑ ‑

GLEESON CJ:   I find it very difficult at the moment to attach any significance to his acknowledgment of the fairness of the trial.  I would have thought there might be more potential significance to his acknowledgement, if it be such, of guilt.

MS ABRAHAM:   Absolutely.  There is no doubt, with respect, that that evidence would be sought to be led in any subsequent trial.  It does not make it, with respect, a situation where, as my friend just suggested, this is an ideal vehicle – really, he is suggesting it is an ideal vehicle because really nothing is wrong – to consider those, apart from, obviously, the judge being asleep, but nothing else in the trial is wrong.

GLEESON CJ:   Yes, apart from that it is all right.

MS ABRAHAM:   I took my friend’s submission to be nothing can be pointed to that in any way affected the trial at all.

HEYDON J:   How does it assist in working out what was meant or what the doctrine referred to in Weiss means?  It is very difficult to work out from the authorities what the content of those principles are.  This is an excellent case to examine that.

MS ABRAHAM:   Weiss has clearly been considered on a number of occasions of recent times, since in the last couple of years, as recently as the decision of Gassy of this week.  In my submission – your Honour has made the point that this does not provide a good vehicle – one does have to take a step back.  What we have here is in fact a trial where – I accept the trial judge’s conduct was unfortunate, to say the least – at the end of the day not one thing can be pointed to and where there was opportunity during the course of the trial to, for example in the bias or waiver cases, the same sort of scenario, to do something, yet nothing was done.  For whatever reason, nothing was done and, as I indicated, there is no evidence as to that aspect as to why.

Your Honours, the focus of my friend’s argument today, really contrary to the submissions that have been filed, and indeed to a great degree contrary to the submissions in the court below, seem to focus on the jury and what reaction a jury may have had to this particular conduct.  In my submission, there is no reason to put aside the presumption that the jury will follow the directions of the trial judge.  In my submission, one gives little credence to the jury if it is suggested – and I will suggest it is pure speculation – the conclusion of Justice Basten on that point, it gives little regard to the jury and their role in the matter that it is suggested that they may well have not followed directions simply because at certain times during the trial the judge was asleep.

My friend has suggested that the findings of fact are those set out in the judgment of Justice Basten.  In the respondent’s submission, the findings are in fact those in the judgment of the majority, which are at pages 186 to 187 of the appeal book, paragraph 189, and indeed a reference to isolated occurrences, which is at page 193.  They are different, with respect, and in the respondent’s submission, lesser findings than those of Justice Basten.

GLEESON CJ:   How long was this trial?

MS ABRAHAM:   There were 11 sitting days, if memory serves, over the space of at least a couple of weeks, if not a bit more.  I think it was 11 sitting days ultimately.

GLEESON CJ:   Thank you.

MS ABRAHAM:   In the respondent’s submission, at the end of the day the appropriate approach is to look to see what, if any, effect this conduct has had, and that is what the majority of the court did.  In the respondent’s submission, that is the appropriate approach and it is consistent with authority.  So it is recent authority from England and Wales in what was a case on all fours with this particular case and, indeed, earlier authority, albeit limited, of this country.

GLEESON CJ:   On the matter raised by Mr Walker – that is, the impression given to the jury – how would you know what effect it had?

MS ABRAHAM:   With respect, why would one speculate that the result would be that it would have an effect, because what Justice Basten has done has indeed speculated to suggest that that would undermine the directions that the judge gives the jury?  The whole system operates on the basis that juries follow the directions given by the trial judge and, with respect, an appeal in this matter would not solve the issue of how one determines whether or not a jury may or may not have been distracted, but at the end of the day there is nothing to suggest they were distracted in any way during the summing‑up or that they were not listening to the summing‑up or anything like that, so in the respondent’s submission it is to give very little regard to the position of a juror to suggest simply because at some other stage in the trial the judge was asleep that somehow they would throw away their oath and ignore what they are being directed to do.

In the respondent’s submission, what occurred in this case, unfortunate though it was, is no different from any other case where a judge, for whatever reason, disengages from the proceedings.  That person, nonetheless, is not following the proceedings.  They may well be – they could be doing any number of things ‑ ‑ ‑

HEYDON J:   If judges disengage from proceedings without falling asleep perhaps there should be some remedy against it.

MS ABRAHAM:   Why, with respect?

HEYDON J:   Those responsible for finding facts and applying the law to them should be concentrating at all stages.

MS ABRAHAM:   I am not quibbling with that aspect, but what I am trying to demonstrate is, why is this case different?  There is no doubt that on occasion judges disengage, they think about other things.

GLEESON CJ:   How do you know that?

MS ABRAHAM:   Well, one sees them reading books – obviously one is sitting during a trial for weeks on end.  To suggest that at some stage a judge is not going to at least think of something else, in my submission is somewhat fanciful.

GLEESON CJ:   In the case of some barristers that is true.

MS ABRAHAM:   But, your Honours, that does illustrate the point:  what of a judge that closes their eyes, not asleep, but to think?

HEYDON J:   They are not sleeping.

MS ABRAHAM:   Absolutely, but then what of the proceedings?  Is it because the judge’s eyes are closed that there is a problem?  Justice Basten seems to consider one needs to be in the sight and hearing – “sight” is what he says.  If one’s eyes are closed, you do not have the proceedings in sight.  In this instance, of course, we are dealing with a judge who had a jury so that he is not the decider of fact.  The scenario may, depending on the facts – obviously it would be different with the judge being the trier of fact in a particular case.  There is no suggestion in this case that when an objection was made the judge was not there to deal with it, that he did not know what was happening.  There is nothing in the transcript that indicates that he was not following the proceedings in that regard, so that if

somebody said “Objection” the argument was had.  There is nothing to suggest that somebody did not object because the judge was asleep, that they were prevented from doing so.

In the respondent’s submission, this (a) does not raise appropriate questions, is not an ideal vehicle to consider that aspect of Weiss.  It would be, in one sense, somewhat ironic that where one has a case where no error can be pointed to as a result of the conduct and has potentially an admission from the co-accused that that in some way benefits an argument to obtaining a retrial when ‑ ‑ ‑

GLEESON CJ:   Hang on.  The admission, if it be an admission, is only by one of the applicants, is it not?

MS ABRAHAM:   Yes, that is correct, it is by Cesan, but the position in relation to the circumstances that I outlined earlier apply to both obviously in terms of the conduct of the trial and the like and the Court of Appeal’s finding that the evidence was compelling and that the trial, in effect, would be no different and, with respect, that has not been challenged in the written submissions by my friend – any of those particular findings by the majority, and those findings were open to the majority to make.  Rather, there has been reliance on factual findings made by Justice Basten, which findings were not to the same degree – in fact, they were a worse degree – than that found by the majority.  Those are my submissions.

GLEESON CJ:   In these matters there will be a grant of special leave to appeal.

AT 12.29 AM THE MATTERS WERE CONCLUDED