Cooley v The State of Western Australia
[2005] WASCA 160 (S)
•19 AUGUST 2005
COOLEY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 160 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 160 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:43/2004 | 23 MAY 2005, 9 SEPTEMBER 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA PULLIN JA | 19/08/05 | |
| 28/09/05 | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Order granting the applicant leave to reinstate ground 3(ii) recalled and vacated Reasons for judgment delivered 19 August 2005 recalled and amended Leave to amend appeal notice refused | ||
| A | |||
| PDF Version |
| Parties: | TIMOTHY JOHN COOLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Appeals Reasons for judgment Incorrect assertion of fact made to Court Adverse finding made based on incorrect facts Recall of order and reasons for judgment Order granting leave to reinstate appeal ground vacated Amendment of reasons to correct factual error and delete adverse finding |
Legislation: | Nil |
Case References: | Bastow v Bagley & Co Ltd [1961] 1 WLR 1494 Cameron v Cole (1944) 68 CLR 571 Cooley v The State of Western Australia [2005] WASCA 160 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839 Monaco v Arnedo Pty Ltd (1943) 13 WAR 522 Rondel v Worsley [1969] 1 AC 191 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Taylor v Taylor (1979) 143 CLR 1 Vance v McCormack (2004) 154 ACTR 12 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COOLEY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 160 (S) CORAM : WHEELER JA
- ROBERTS-SMITH JA
PULLIN JA
DECISION : 28 SEPTEMBER 2005 FILE NO/S : CCA 43 of 2004
- CCA 205 of 2004
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JOHNSON J
File No : INS 99 of 2002
(Page 2)
Catchwords:
Practice and procedure - Appeals - Reasons for judgment - Incorrect assertion of fact made to Court - Adverse finding made based on incorrect facts - Recall of order and reasons for judgment - Order granting leave to reinstate appeal ground vacated - Amendment of reasons to correct factual error and delete adverse finding
Legislation:
Nil
Result:
Order granting the applicant leave to reinstate ground 3(ii) recalled and vacated
Reasons for judgment delivered 19 August 2005 recalled and amended
Leave to amend appeal notice refused
Category: A
Representation:
Counsel:
Applicant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Applicant : Gary Huggins
Respondent : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
Bastow v Bagley & Co Ltd [1961] 1 WLR 1494
Cameron v Cole (1944) 68 CLR 571
Cooley v The State of Western Australia [2005] WASCA 160
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839
Monaco v Arnedo Pty Ltd (1943) 13 WAR 522
Rondel v Worsley [1969] 1 AC 191
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Taylor v Taylor (1979) 143 CLR 1
Vance v McCormack (2004) 154 ACTR 12
Case(s) also cited:
Nil
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1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA. I agree with those reasons and have nothing to add.
2 ROBERTS-SMITH JA: These are supplementary reasons for judgment to recall certain parts of earlier reasons for judgment delivered by this Court on 19 August 2005 in Cooley v The State of Western Australia [2005] WASCA 160.
3 At [46] - [70] of my reasons published that day, I dealt with ground 3(ii), which, at the time of the appeal, was in these terms:
"The trial process was unfair and there was prejudice to the Appellant [sic] in the way the evidence of the Appellant's [sic] mental condition was put to the jury, namely:
i) …
ii) the Respondent's expert Dr Zdenek (Sid) Srna has, since the trial, been discredited by the Medical Registration Board and had his ability to give credible and reliable evidence questioned. Dr Srna's evidence (namely that the Appellant [sic] confessed the killing to him when he, Dr Srna, was asked by the Respondent to examine the Appellant) was a cornerstone of the Respondent's case. This Honourable Court should accept into evidence, pursuant to s 697 of the Criminal Code, fresh evidence regarding the position of Dr Srna and question marks now raised over his ability to give credible evidence."
4 At [50] - [51] I explained why the ground was misconceived, even taken on the chronological facts as they were then known to be. However, I went on then to deal with the way in which the ground had ultimately come to be argued, which, as I mentioned at [52], was that the applicant was denied the opportunity of challenging Dr Srna's credibility in cross-examination based upon the adverse findings of the Medical Board as at March 2004.
5 Ground 3(ii) had been struck out by Miller J at a directions hearing prior to the hearing of the appeal. His Honour struck it out because the adverse findings of the Medical Board against Dr Srna had by then been quashed on appeal to a single Judge of this Court. At the hearing of the appeal on 23 May 2005, counsel for the applicant, Mr Watters, made an
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- oral application to have the ground reinstated. That was opposed by counsel for the respondent, Mr Dempster.
6 In support of that application, Mr Watters began by telling the Court (t/s 35):
"… one would have thought that the respondent would have been aware of any decisions against experts it proposes to call in support of its case and there's an issue with regard to Dr Srna giving evidence when there already had been a finding …"
7 Counsel was then asked specifically, whether it was being said that the prosecution knew about the Board's findings, and secondly, if they did, whether they should have revealed that information to the defence. Mr Watters' response was first, that given the Board's findings against Dr Srna it was incumbent on the prosecution to engage an alternative expert. He said he accepted there was no evidence the prosecution knew about the Board's findings at that time, but assuming they did, they should have disclosed that information to the defence or called an alternative expert. He said that if the prosecution had disclosed the information, it may have been a matter defence counsel would have wished to explore in cross-examination of Dr Srna. Counsel crystallised his submission on this point (at t/s 39), when, after he was asked whether he was saying there was some miscarriage of justice so far as the applicant was concerned in not having been able in some way to use the adverse findings of the Board even though it was now known those findings were wrong and had been quashed, he said:
"WATTERS, MR: Yes, because it may have been a matter for the jury. For example, if it had been disclosed to the defence the defence could have put it to Dr Srna, 'Have you ever been convicted or found by the Medical Board to have misled them?' If he said no someone from the Medical Board could have been subpoenaed by the defence to come and give evidence and say, 'These are our findings.'
ROBERTS-SMITH JA: I understand all of that. I think we're at cross-purposes. My question really goes to the justice of the case. You want to get the benefit of putting before the jury - - -
WHEELER JA: A wrong finding.
ROBERTS-SMITH JA: - - - an allegation or a finding against Dr Srna and have the benefit of that knowing now full well that
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- that was a wrong finding and was subsequently set aside. What's just about that?
WATTERS, MR: Your Honour, with respect, it's a matter for what was before the jury at the time of the trial and the fact is the defence was denied an opportunity to impugn the credit of Dr Srna at trial in front of the jury.
ROBERTS-SMITH JA: Improperly, as it would turn out, because it was a false result.
WATTERS, MR: It may have been. He could have been - other findings - let me start again, it may have been a matter that it could have been put to him, 'Have you been found guilty of misleading the board?' 'Yes' and if that decision overturning an order had been handed down the prosecution could see that has been overturned.
ROBERTS-SMITH JA: It wasn't though, was it?
WATTERS, MR: No, it wasn't but what I'm simply seeking to put to your Honour is it may have been a relevant matter for the jury at the time of trial in regard to the - - -
ROBERTS-SMITH JA: Of course it would have been.
WATTERS, MR: I can't take it any further."
8 At the conclusion of Mr Watters' submissions, the Court indicated we did not need to hear from Mr Dempster in respect of ground 3(ii), to which he responded (t/s 44):
"… I was only going to make the point that my understanding is that the Medical Board finding in September 2003 was in fact published.
WHEELER JA: As in published in the newspaper?
DEMPSTER, MR: Yes …"
9 He then went on to address the issue of the applicant's mental illness and his capacity to form a specific intent. He did not suggest that at trial the prosecution was not aware of the Medical Board findings, nor that Mr Watters was incorrect in suggesting defence counsel was not aware of
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- that information and that the prosecution had not disclosed it to defence counsel.
10 Following the publication of the Court's reasons on 19 August 2005, Mr Dempster wrote to the Court by letter dated 23 August 2005 in the following terms:
"I must raise a matter of some seriousness.
Entirely without warning or notice, the Applicant's counsel raised orally at the hearing on 23 May 2005 the allegation that the prosecution had failed to disclose Medical Board findings adverse to Dr Srna. Ground 3(ii), deleted by Miller J, did not relate to non-disclosure. There has never been a ground of appeal supporting the alleged non-disclosure.
At [67] of the judgment of Roberts-Smith JA, with whom Wheeler and Pullin JJA agreed, the Court of Appeal has found that there was non-disclosure on the part of the State which resulted in a miscarriage of justice.
In truth, there was no failure to disclose. The trial prosecutor, Bruno Fiannaca, was aware that Defence counsel, Stephen Smith, had read the Medical Board findings. There was discussion between counsel of the findings before Dr Srna was called to give evidence. The Applicant's trial counsel was aware of the pending appeal against the adverse findings and made a conscious decision in all the circumstances not to cross-examine Dr Srna on the issue.
The allegation of non-disclosure is completely unfounded."
11 By letter dated 2 September 2005, Mr Watters forwarded a copy of a letter from Mr S Smith, who had been counsel for the applicant at trial, to the trial prosecutor. That was relevantly as follows:
"I can confirm that I became aware that Dr Srna was before the Medical Board during the course of the first trial which resulted in a hung jury. At some time, shortly after the commencement of the second trial, I was provided with a copy of the written decision of the Medical Board. From memory only, I think it was Dr Steve Patchett of Graylands Hospital or one of his staff that may have given it me.
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- I was aware that I received the written decision of the medical board that an Appeal had been lodged by Dr Srna against that decision. In fact earlier during the course of the trial I checked with the front counter of the Supreme Court to find out the status of the Appeal. Initially the records did not show that the Appeal was still on foot however a day or two before Dr Srna gave his evidence I became aware that the appeal had in fact been lodged and was to be heard some months later.
On the day that Dr Srna gave evidence in the Supreme Court I again checked the status of the appeal with the Appeal's Clerk at the Supreme Court. He confirmed that the appeal was still pending. I then spoke to you in respect to the Board's findings and the pending appeal. I made the decision not to cross-examine Dr Srna in respect thereto. From memory Mr Gary Huggins, my junior solicitor was not present at the time but I am sure I spoke to him before I made that decision.
I remember in the discussions between you and I there was quite a heated argument between [sic] fairness to Dr Srna and fairness to my client. You further advised me that you would be objecting to any questions along those lines.
I recall having a discussion with my instructing solicitor, Mr Gary Huggins and it was my decision not to cross-examine Dr Srna on the Board's findings and I did not even make an application to the Court to do so.
Mr Huggins instructed Mr Watters to conduct the appeal and I was not privy to any conversations between Mr Huggins and Mr Watters.
On one occasion in passing through the Central Law Courts Mr Watters mentioned the appeal to me but only to say that it was coming up soon. I had no discussions at all with Mr Watters in respect to the evidence or [sic:of] Dr Srna in particular."
12 In his covering letter dated 2 September 2005, Mr Watters wrote (so far as is pertinent):
"I recall talking to Mr Smith, after the Grounds of Appeal were filed in August 2004 at the front of the Central Law Courts building about Mr Cooley's appeal. My recollection of that
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- conversation is that I mentioned to Mr Smith generally the Ground of Appeal concerning Dr Srna as is particularised at Ground Three (ii). But that conversation was approximately one year ago and I may be mistaken in my recollection as to what was discussed.
It would appear from Mr Smith's letter that he was aware at the Appellant's first trial of the adverse findings made by the Medical Board against Dr Srna and any assertion to the contrary by me was an error (Transcript of Proceedings; 23 May 2005: pp33-40 - copy enclosed). For that error I humbly apologise. I certainly did not at any time intend to mislead the Court."
13 In light of these developments, the matter was re-listed on 9 September 2005. The Court suggested to counsel that an appropriate course might be an order that certain parts of the reasons for judgment of 19 August 2005 be recalled and corrected. Both counsel agreed to that suggestion.
14 The orders made following delivery of those reasons have not been perfected. An order may be set aside without necessitating an appeal if the Court has been led to purport to determine a matter when a party has not been afforded a reasonable opportunity to appear and present their case (Cameron v Cole (1944) 68 CLR 571 at 589). It has been held that the power to set aside is part of the inherent jurisdiction of any court of justice, whether superior or inferior (Hoskins v Van Den-Braak (1998) 43 NSWLR 290 at 298, 299) although the better view may be that the power is necessarily implied, rather than inherent, at least in relation to inferior courts.
15 This is not a case in which a party was deprived of a right to be heard, so giving rise in the absence of injustice to the other party, to a need to exercise the inherent jurisdiction to set aside a judgment or order (Taylor v Taylor (1979) 143 CLR 1 at 7, 16, 22). This is rather an occasion to exercise the inherent jurisdiction to remedy an injustice in the nature of an incorrect finding based upon a wrong statement of facts, inadvertently asserted by counsel for the applicant and not at the time corrected by counsel for the respondent (Monaco v Arnedo Pty Ltd (1943) 13 WAR 522 at 524). The power exists in respect of judgments which have not been drawn up, including those of appeal courts (Bastow v Bagley & Co Ltd [1961] 1 WLR 1494).
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16 Here the order to be recalled is that the applicant be granted leave to reinstate ground 3(ii). The reasons for judgment can be recalled to correct obvious or agreed errors. That was the course followed by Crispin J in Vance v McCormack (2004) 154 ACTR 12.
17 The factual error here was significant. Leave to re-open will more readily be given where that is so, even after judgment (Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 265). The assertion was that the Board's finding adversely to Dr Srna and the reasons for it, were not known to the applicant's counsel at trial and were not disclosed to him by the prosecution and that he was thereby denied an opportunity to cross-examine Dr Srna on that. The applicant now accepts that trial counsel, to the knowledge of the prosecutor, was at all relevant times fully aware of that information and with that in mind, made a deliberate forensic decision not to cross-examine the doctor on it.
18 The circumstances in which the assertion was made in the course of oral argument and without the point having previously been raised, gave counsel for the respondent (who was not trial counsel) no opportunity to check the fact and respond to the submission in any informed way, although that was not appreciated at the time because both the Court and counsel naturally were prepared to accept the assertion of fact implied or made by counsel for the applicant. The Court was accordingly deprived of the benefit of a correct explanation of the facts and submissions based on that.
19 For these reasons and given the importance of the factual error and the finding based upon it, we indicated we would recall our earlier order and reasons and make an appropriate amendment to them.
20 In light of this unfortunate course of events and the erroneous factual basis upon which a finding was (thereby unjustly) made adversely to the respondent, it is appropriate that my judgment delivered on 19 August 2005 be recalled to the limited extent necessary to correct that.
21 I would accordingly order that the order giving the applicant leave to reinstate ground 3(ii) be recalled and vacated and [67] - [70] of my reasons of 19 August 2005 be recalled and the following paragraphs substituted for them:
"67 Be all of this as it may, the ground as ultimately advanced by counsel for the applicant fails at the outset. It is founded upon a wholly incorrect factual premise. It is founded upon an assertion from the Bar table that the
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- applicant's trial counsel was unaware of the Board's finding against Dr Srna and its report in relation to it.
- 68 Following the hearing of this appeal, material was put before the Court by both counsel, as a result of which the Court re-convened and heard further submissions on this ground. The facts now agreed are that in truth, there was no failure to disclose. The trial prosecutor was aware that defence counsel had read the Medical Board findings. There was discussion between counsel of those findings before Dr Srna was called to give evidence. The applicant's trial counsel was aware of the pending appeal against the adverse findings and made a deliberate forensic decision in all the circumstances not to cross-examine Dr Srna on the issue. Any assertion or implication that there was non-disclosure of this information on the part of the prosecution is completely unfounded.
69 In light of the facts as they are now known to be, there is no substance in this ground whatsoever and I would accordingly refuse leave to amend the appeal notice so as to reinstate it.
70 [paragraph deleted]."
22 Under the circumstances it is necessary to make some observations on counsel's duty to the Court.
23 Counsel is "an officer of the court concerned in the administration of justice, [and] has an overriding duty to the court": Rondel v Worsley [1969] 1 AC 191 at 227 per Lord Reid.
24 Counsel must not only take reasonable steps to verify their client's contentions, but also their own contentions. After stating that counsel must not put submissions to the court while in doubt about their potential to mislead, Santow J said in Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839 at [2]:
"I adopt in that regard what has been said by G E Dal Pont in 'Lawyers’ Professional Responsibility' (LBC, 1996) at 354-355:
'…
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- (c) Evidentiary foundation to support statements and allegations
Related to the duty to ascertain the verity of the client's statements, lawyers must not be a party to the presentation to the court of any evidence, or the making of any statement or allegation, for which there is, in their opinion, insufficient evidentiary foundation. For example, the Australian Bar Association’s Code of Conduct (1993)… r 5.8, provides that "[i]n opening any proceedings, a barrister shall not open any alleged facts as a fact where he or she does not believe that the alleged fact will be supported by evidence to be presented".'"
26 PULLIN JA: I have read the draft reasons prepared by Roberts-Smith JA. I agree with those reasons and have nothing to add.
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