Cox v The Queen

[1998] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S79 of 1997

B e t w e e n -

RUSSELL JOHN COX

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 MAY 1998, AT 10.57 AM

Copyright in the High Court of Australia

MR J.C. NICHOLSON, SC:   If the Court pleases, I appear for the applicant.  (instructed by Carneys)

MR A.M. BLACKMORE:   If the Court pleases, I appear for the respondent with my learned friend, MR M.C. MARIEN.  (instructed by S.E. O’Connor, Solicitor for the Director of Public Prosecutions (New South Wales))

McHUGH J:   Yes, Mr Nicholson.

MR NICHOLSON:   If the Court pleases.  Your Honours, this application for special leave focuses upon an issue of procedural fairness at the hearing of the resentence application and the Court of Criminal Appeal’s response to it.  In other words, your Honours, it is not just a case of complaining that the sentence is too much, rather, the focus is upon the failure of the judge at first instance to extend procedural fairness to the applicant by ruling that he would not permit the applicant to give evidence as to the facts of the crime, whether or not subject of an express finding by the original trial judge, Mr Justice Taylor, and if that were an error by his Honour, then the Court of Criminal Appeal’s response to it.

The approach by the first instance judge, that is Mr Justice Badgery‑Parker, must, we argue, have been predicated upon a proposition that he was bound by the findings of the original sentencing judge.  If I can take your Honours to page 4 of the application book.  That is the judgment of his Honour or the remarks of his Honour on sentence.  About line 11, he says this:

Some of the facts as found by his Honour are denied by the applicant; after hearing the submissions of counsel I ruled that I would not allow the applicant to give evidence as to the facts of the crime -

and I highlight these words -

whether or not the subject of an express finding by the sentencing judge.

Clearly what is embodied in that approach by his Honour is that he regards himself as to the objective facts at least bound by the findings of fact of the original sentencing judge and would not allow them to be traversed or amplified.

HAYNE J:   To what extent do you dispute that proposition?

MR NICHOLSON:   Which proposition, your Honour?

HAYNE J:   The proposition that on resentence you may not traverse, for example, facts actually found by the original sentencing judge?

MR NICHOLSON:   Well, the best way to answer your Honour is to take your Honour to page 54 of the application book where, in the reasoning of the Chief Justice, he says at line 39 perhaps:

The obligation to have regard to the sentencing judge’s comments does not mean that the later judge -

perhaps I should go back to the beginning of that paragraph:

Subsection (9) of s13A imposes certain constraints.  Amongst other things, the judge is obliged to have regard to any relevant comments made by the original sentencing court when imposing the sentence -

and then taking that theme, his Honour says at line 39:

The obligation to have regard to the sentencing judge’s comments does not mean that the later judge is absolutely bound by those comments -

and I highlight -

or by the findings of fact on which they were based, but it forms an important part of the statutory context.

McHUGH J:   But that really does not deal with the difficulty that you face in this case, does it, because the learned judges of the Court of Criminal Appeal held that the interests of justice in this case did not require the evidence to be given because the main thrust of the evidence that the applicant wished to give was inconsistent with the verdicts of the jury.

MR NICHOLSON:   Yes.  Well, I recognise that I must face that problem and if I may I can perhaps go directly to that.

McHUGH J:   Yes.

MR NICHOLSON:   It is this, that with respect to the Court of Criminal Appeal would have been correct if the applicant was being tried on his own, but the life sentence - well, let me illustrate it.  The doctrine of common purpose allowed him to mitigate his involvement.  The life sentence which he was facing was a life sentence in respect of the shooting of Pavich.

McHUGH J:   Which was done by Motric.

MR NICHOLSON:   Which was done by Motric, and the circumstances of that are conveniently set out in the top half of paragraph 8 on page 72:

The escape began when Motric, armed with a fully loaded Berretta pistol, and Cox armed with a wooden imitation gun ran with MacDougall behind the bread van into the caged area between internal and external prison gates.  Motric approached the passenger side of the truck and discharged the Berretta in the direction of a prison officer, Pavich.  Meanwhile the applicant approached the driver’s door and menaced a prison officer Clark with the wooden firearm ordering him from the vehicle into the visitors waiting room.

Now, his Honour, the original learned sentencing judge, his remarks as to that episode, that is the episode for which he imposed a life sentence, are to be found on page 5 of the application book in an extract taken from the original judgment and at line 6 or 7:

The escape was planned.  You Motric at the time had in your possession a Baretta pistol that was fully loaded.  In accordance with a pre‑arranged plan, you, with MacDougall, followed a truck through what I might call the inter‑gate into the complex.  There, by threats, by menaces, by firing shots from this pistol at warders, by forcing prison officers to lie on the ground in the office, by threatening to shoot them, you attempted to gain possession of the keys -

and so on.  Now, can I come back to the original determination of his Honour Mr Justice Badgery‑Parker at page 4.  You see in line 30 he applies, as it were, or line 31, the doctrine of an estoppel, very conscious of the impact of it:

In the present case the imposition of a sentence of imprisonment for life was not mandatory; it was therefore open to the prisoner to place before the original sentencing judge evidence in mitigation -

and here are the key words because this is what, in fact, the applicant wanted to do -

including evidence which, although not given before the jury, may have been relevant to illuminate the true facts as to the applicant’s participation in a joint criminal enterprise; if, as was here the case, the applicant chose not to give evidence -

now remember when he made the decision in 1977 he had no idea that in 1989 an Act would be passed setting up a truth in sentencing legislation and he would thereafter be penalised, but anyway -

before the sentencing judge, he must, in my view, be regarded as bound by such findings of fact as the sentencing judge made at the time -

Now, his Honour is incorrect in holding that the applicant was bound by the findings of fact.  Indeed, the procedure in making these applications recognises that very fact because in the procedure the Director of Public Prosecutions prepares what he calls a statement of facts which canvasses in detail the facts of the case and, if I may, I would hand this up to your Honours, not to invite your Honours to read, but rather to see the set up and you will see in the statement of facts - there are paragraph A - major paragraph A “Proceedings” and if I can take your Honours to page 5 rather, “Facts on the case”, and there the prosecution, the DPP, set out in numbered paragraphs at great length the facts of the case.

Now, that is served, of course, on the applicant and in response to that he files a notice of reply to the statement of facts and I make this available to your Honours and your Honours will see that immediately is set in train what I might call the pleadings.  Certain facts are disputed and it is clear, in our submission, that one of the features of a 13A application is to litigate the facts and litigate the facts as to the objective criminality and, of course, it is on the objective criminality that the bulk of the penalty will be determined.

McHUGH J:   Yes, I know but you have got to come to grips with the fact that the Court of Criminal Appeal at page 49 set out the unsworn statement of the accused which, in the document you have just handed up, he says the facts were as contained in that dock statement and the Court of Criminal Appeal went through it and thought that it was inconsistent with the jury’s verdicts or otherwise did not add anything of relevance.

MR NICHOLSON:   Your Honours, that really leads us into the second reason why we say special leave should be given, because if Justice Badgery‑Parker was wrong, that is to say, if in applying, as it were, a doctrine of estoppel, which, in our submission, is not an exercise of discretion, so that if he has applied a wrong principle of law then it is no answer for the Court of Criminal Appeal to, as it were, substitute its own discretion.

McHUGH J:   Well, it may be.  It is certainly a complete answer for the Court of Criminal Appeal to say that, “The evidence that was sought to be led was not admissible on a section 13A application because in our view it contradicted the findings of the jury.”

MR NICHOLSON:   It did not say that, with respect.  What it said was that the interests of justice did not require it.  It did not say it was inadmissible.

McHUGH J:   Well, that is right.  It said the interests of justice did not require the evidence ‑ ‑ ‑

MR NICHOLSON:   So that is an exercise of discretion.

HAYNE J:   I am not sure that the analysis at page 50 is not an analysis in large part saying that the evidence was not admissible and not admissible because in large part it was evidence directed to contentions inconsistent with the jury’s finding.

MR NICHOLSON:   I have already submitted, with respect, the jury’s finding could stand, that is to say, on the life sentence matter, because clearly that verdict is found on the proposition of common purpose and why was it not then, in our submission, open to the applicant to say that he did not know that the gun was loaded with real bullets.

McHUGH J:   Mr Nicholson, the things you have been saying just tend to indicate that there is no special leave point in this case.  The only arguable special leave point would be the denial of natural justice point and you are getting into these details.

MR NICHOLSON:   I accept that the details are not going to assist me, but what would assist me, in my submission, is the denial of natural justice or the procedural unfairness coupled with the Court of Criminal Appeal’s response to it, which was, as it were, to substitute a discretion of its own rather than to ask itself what would Justice Badgery‑Parker, or how would Justice Badgery‑Parker have exercised his discretion if he had accepted, as was the fact, that he was open to finding his own objective facts.

McHUGH J:   But the Court of Appeal did not substitute any discretion for the judge.  It seems to have accepted that the learned judge erred but the court on analysing the evidence held that there was no miscarriage of justice and that the interests of justice did not require the evidence to be given.

MR NICHOLSON:   Well, your Honours, if that is the view of your Honour then I suppose I should move on to the last of the matters that I wanted to canvass and it is this:  what are the principles which cover the setting of a minimum term - here we have a minimum term of 29 years - for something where this man is a principal in the second degree - what are the principles that cover the minimum term when section 5 of the New South Wales Sentencing Act do not apply?  In our submission, the Act being silent on what is the proper approach to a minimum term, it is appropriate for this Court to look at the issue and, in particular, to indicate whether Power v The Queen sets out ‑ ‑ ‑

HAYNE J:   Was that not done in Bugmy?  Does not Bugmy deal with this in relation to Victorian life sentences?

MR NICHOLSON:   I, to be perfectly frank, am not sure.  I had thought that there was some specification in the Victorian Act ‑ ‑ ‑

HAYNE J:   I think not.

MR NICHOLSON:   ‑ ‑ ‑ but I certainly stand to be corrected, your Honour.

McHUGH J:   Mr Nicholson, speaking no doubt only for myself, I am never attracted to an argument that says, “This is a proper case for the grant of special leave because it will give the Court an opportunity to lay down the principles.”  If counsel want to persuade me a case is a case for the grant of special leave, they should formulate what they assert is the relevant principle so that there is something concrete that the Court can deal with.

MR NICHOLSON:   I have no problem in submitting to your Honour that, in fact, Power is the common law position, if there is a common law position in respect of ‑ ‑ ‑

HAYNE J:   And if that is so, why was there some departure here, given the unusual statutory position that obtained with all of these difficulties about Katingal, his absenting himself from Katingal, 29B and the like?  What issue of general principle falls for determination in the extraordinary circumstances of Mr Cox’s case?

MR NICHOLSON:   We would argue, your Honour, that the fact that Motric was out after seven, MacDougall was out after 10 and Cox is going to be out after 29.

HAYNE J:   29 is a little misleading or liable to misconstruction by the uninformed third party if account is not taken of his 12 years at large, is it not?

MR NICHOLSON:   Well, even if you took account of his 12 years at ‑ ‑ ‑

McHUGH J:   And, indeed, it is 16 years, is it not, out of the ‑ ‑ ‑

MR NICHOLSON:   One of the reasons why perhaps it is appropriate to look at whether Power applies because we would argue that the five years in custody interstate ought to count in the consideration of minimum term.  He will have served, referrable solely to this matter, 13 years; continuous custody, 18 years.  We would argue that that demonstrates that “minimum” did not mean “minimum” as considered by Power.  They are the submissions, your Honours.

McHUGH J:   Yes, thank you.  The Court does not wish to hear you, Mr Blackmore.

In the unusual circumstances described in the reasons for judgment of the Court of Criminal Appeal, the refusal to hear evidence from the applicant without inquiring about its intended subject matter occasioned no injustice.  We are not persuaded that the decision of the Court of Criminal Appeal in this or the other respects argued by Mr Nicholson is attended by doubt.  For that reason the application for special leave to appeal is refused.

AT 11.16 AM THE MATTER WAS CONCLUDED