Cummins v The Queen

[2000] HCATrans 68

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B31 of 1999

B e t w e e n -

TERRENCE CUMMINS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2000, AT 10.49 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:  I appear for the respondent Crown, if your Honours please.  (instructed by the Director of Public Prosecutions (Queensland))

GUMMOW J:   Is the applicant in Court?

MR BYRNE:   Yes, your Honour.

GUMMOW J:   Yes, Mr Cummins.

MR T. CUMMINS appeared in person.

GUMMOW J:   You understand you have 20 minutes to address us orally – no more than 20 minutes to address us orally.

MR CUMMINS:   Okay.  First up, I sent extracts – have you got the ‑ ‑ ‑

GUMMOW J:   Yes, we have all of the material.

MR CUMMINS:   Okay.  Before I start, your Honours, I would like to ask the question on page 1 of the extracts of evidence, application book page 44, line 25 – it is a response from the Crown that, on their arguments, it says:

This is an appeal against sentence.  It is not the practice of this Honourable Court to entertain appeal against sentence.

KIRBY J:   That is overstating it a bit but there has to be some issue of general principle because normally sentence appeals finish at the Court of Criminal Appeal or the Court of Appeal.  There are so many of them that this Court can only really look at it if there is a question of principle involved or a significant injustice that seems to the Court to warrant intervention.

MR CUMMINS:   Okay, thank you, your Honour.  I would like to draw your attention to page 10, line 37, of the application book.

GUMMOW J:   Page 10?

MR CUMMINS:   Page 10, yes.

GUMMOW J:   Yes.

MR CUMMINS:   Her Honour Justice White says:

You now admit, both by your plea –

and then she goes on to make other remarks, but I do not want to bring that up at the present time.  Now, it is my understanding that in any criminal case the onus of proof lies upon the Crown and when the facts are in dispute then the rules of evidence must be applied even if the plea of guilty is entered.  I pleaded guilty to the legal ingredients of the offence that I was charged with, manslaughter, yet throughout my sentence hearing there were numerous collateral facts that were repeatedly disputed.  When conducting my defence, I presented sworn evidence asserting mitigating circumstances.  During that sworn testimony the Crown persisted in presenting their hypothesis of aggravated circumstances that I repeatedly disputed under oath.

Throughout this matter the Crown failed to resolve these disputes by presenting sworn evidence to prove their opinions regarding aggravated circumstances and the court did not require that ordinary judicial process beyond reasonable doubt be applied to properly determine the collateral facts of it being disputed.  It is a well established principle of law that when the court is presented with aggravated circumstances that cannot be proven by way of sworn evidence, then it is the duty of the court to act upon the version of facts which is within the bounds of possibility is most favourable to the defendant.

Despite my plea of guilty, the fact that my defence consisted of sworn evidence, the Crown failed to discharge its obligations of proving that there is any substance to their assertions that there are already aggravating circumstances.  When summing up in this case and imposing sentence, the court clearly stated that the Crown failed to discharge its obligations of proving certain facts regarding certain aggravated circumstances yet the court clearly acted upon other aggravated circumstances that the Crown had presented on unsworn evidence.

The court has relied upon the unsworn evidence that was not substantiated and chose to disregard certain sworn evidence and as a result an error of law has occurred when the court failed in its duty to act upon the version of facts that were more favourable to the defendant and, clearly, reference to these unsubstantiated, aggravated circumstances during the summing up and the imposition of the sentence at the higher end of the scale.  It is evidenced throughout this case that the rules of evidence had not been properly applied and that unsworn evidence was given more weight than sworn evidence.  It is also evident that the court failed to ensure that the ordinary judicial process was not followed by properly determining the disputed collateral facts.  It is my submission that these errors did, in fact, contaminate the sentence imposed.  I would like to go on to page 2 of the extracts, your Honour.

KIRBY J:   The overall sentence that was imposed upon you, even assuming that you could get the appeal up to the Court and that the appeal were allowed, it does not seem to me, looking at all the circumstances, and I sat on a Court of Criminal Appeal for 12 years, that the overall sentence is wrong.  Now, what would you say in answer to that?  That is my impression, that even if you could find some little point such as the point you made about what Justice White said, that all we could do would be to send it back to the Court of Criminal Appeal, and if you were re‑sentenced, it does not seem to me that a sentence that would be called for in a case of this kind which involved, after all, a homicide, would be less than the sentence that was imposed upon you by the primary judge.  Now, I put that to you so that you can respond if you wish to do so.  We would not set it aside simply for academic purposes.  There would have to be some real point in doing so.

MR CUMMINS:   Basically, it boils down to the fact that the body disposition has been taken into account whereas I was never charged with that particular incident.

KIRBY J:   I understand that argument but if you take that out of the equation altogether and sentence you solely for the homicide, the sentence that has been imposed upon you does not strike me as out of line with the sentences with which I am familiar, having sat in a Court of Criminal Appeal for 12 years.  I am sorry to put that to you but that is in my mind, so I think fairness to you requires that I give you a chance to respond to it.

MR CUMMINS:   Well, it is really not outside of the sentencing – the accepted cases when domestic cases range between ‑ ‑ ‑

KIRBY J:   But I think it is a long time now since courts have said domestic homicides are in a second class, that people who are in a domestic relationship can be killed and that the sentence imposed is some second order of sentence.  People in domestic relationships ought to be in situations of love and trust and, therefore, in some ways you could think of them as more aggravated.

MR CUMMINS:   Realistically, I do not think anyone really – they talk about everything else but the penalty that you carry with inside your own self is something that no-one ever talks about.

KIRBY J:   I do realise that.  I understand that.  But I am looking at this simply from the point of view of what this Court would do if it intervened.  We would simply send it back and if you were re‑sentenced, absent absolutely any mention or suggestion or reference to the body disposal, I just do not think that the sentence would be any different.

MR CUMMINS:   The Crown clearly states that I was not given any allowance for exhibiting genuine remorse and I would suggest that there was ample remorse and this was not open to be found.  Have you read that, your Honour?

KIRBY J:   Yes.

GUMMOW J:   Yes.

MR CUMMINS:   What the Crown maintained was that I was not penalised for the rather undignified way in which I dealt with my wife’s body.  The Crown’s interpretation of what her Honour’s words meant conceded that I was not given a greater allowance for exhibiting genuine remorse.  This would seem reasonable to conclude that, but for the incorrect finding of not exhibiting genuine remorse, there is a reasonable possibility that a more favourable benefit would have resulted in a matter of penalty.  Page 7 of the extracts ‑ ‑ ‑

KIRBY J:   Is this seven of the application book?

MR CUMMINS:   No, sorry, it is of the extracts that I sent you and it is page 11, line 49 of the application book.

GUMMOW J:   Yes.

MR CUMMINS:   On this particular page of the extracts, there is ample evidence to be found throughout the whole of the hearing, on that particular day, that there was a genuine remorse, was accepted by the Court of Criminal Appeal on Mr Ryan’s report.  The body disposition was put down to an act of panic rather than one of lack of remorse, of having a genuine fear of returning to prison.  The CCA seem to have found that there was an acceptance of genuine remorse which conflicts with the Crown’s interpretation that that is what her Honour meant when she said it was rather undignified, the way in which I dealt with the body.

KIRBY J:   Yes.  Mr Cummins, I am prepared to accept that there is genuine remorse, but even if one accepts that, then I repeat that the sentence that would follow from a re‑sentencing operation would, it seems to me, be no different.  After all, a person has lost her life in this matter and I do not think that the actual sentence that is imposed is such that you could convince me that you would get a lower sentence and if that is so, then, really, it would be an academic exercise to send it back simply because the judge has made a reference to a matter that would have founded a different charge.

After all, she did have to describe the circumstances in which the event occurred and that did lead to a description of the way in which the body of your former de facto wife was disposed of.  That was just part of the background that her Honour was adumbrating.  But I accept that you feel genuine remorse, but even accepting that, I do not think it makes a difference to the sentence.  A person has lost her life.

MR CUMMINS:   No one realises that more than what I do, your Honour.

KIRBY J:   Of course, but, you see, we have to look at it from the point of view of how it fits into other sentences for similar offences.

MR CUMMINS:   The other thing I would like to bring to your Honour’s attention is the psychological report done by Timothy Dennis Ryan.  It is on page 10 of the extracts.

GUMMOW J:   Yes.

MR CUMMINS:   Where page 2 of Mr Ryan’s report says:

He did however inform that he visited a psychologist for counselling in July 1994 and again at an unspecified period in 1995.  Mr Cummins did not elaborate on the details of his consultations.

Now, I put it to the CCA that if I was going to divulge all of the information that Mr Ryan said I did, I am certain that I would have told him about the incident at Boggo Road when I was assaulted and shot at by prison officers which was the reason that I suffer from post traumatic stress disorder after that incident.  I was subsequently charged by the police over that and dismissed by the magistrate, and the magistrate’s words were that “the defendant should have been a complainant, and the complainant should have been the defendant”.  There is a civil suit against the prison’s department over that issue still pending.

Now, as people are apt to act in certain ways, if I had divulged this information to Mr Ryan about what I had for breakfast in 1949, I am certain I would have told him about that.  Timothy Dennis Ryan deliberately presented a false document to the court.  His brother was well aware of the fact that I had a problem with that particular era of my life.  That was divulged to him.  He chose to ignore it.  They kept the report from me until such time as I – February last year of 99, that I lodged an appeal with the CCA, and that was the first time I had read that report.  Now, if I had have read that report before going into court on the sentencing day, I would have not allowed it to be tendered.

KIRBY J:   But your concern about this is as it may impinge on your civil action, is it?

MR CUMMINS:   No, not at all.  What we have here in Queensland, once you go to prison here now, there is only a very privileged few that are released on parole.  The recommendations for parole made by the courts here are a joke, they are a token.  It is another world once you go into the Queensland corrective services.  They have all sorts of hurdles that you have to get over and no one gets over them.

KIRBY J:   I know these might be practical concerns for you, Mr Cummins, but all we can review are the sentence, you see.

MR CUMMINS:   That is correct.  You have the letter there from the Honourable Minister, Tom Barton?

KIRBY J:   Yes.

MR CUMMINS:   You will see at the bottom of the last paragraph that he makes mention about the recommendations, so any way of a recommendation being granted to me as a result of my plea of guilty does not benefit me in any way whatsoever.

KIRBY J:   I am afraid that this is not a matter that touches the judge’s sentence, which is all that we can review.  We cannot get involved in the internal departmental consideration of these matters.

MR CUMMINS:   Can I draw your attention to page 2 of the extracts?

GUMMOW J:   No, I think you should be winding up your submissions, Mr Cummins.

MR CUMMINS:   I have got three minutes.

GUMMOW J:   Yes.

MR CUMMINS:   It is a case of Ian Reilly that was – have you got page 2?

GUMMOW J:   Yes.

KIRBY J:   Yes, we have that.

MR CUMMINS:   This was a case in Toowoomba in mid-1998 and at the top of the page, you will see his Honour, he says:

I have to be careful not to punish him for the rather grizzly disposition of the body because that’s a separate defence that hasn’t been charged.

Mr Rutledge goes on to say:

Yes, I understand that, but in terms of taking into account the remorse factor, it can be, in our submission –

and you can see for yourself what he says there.  Now, this man was sentenced to six years with a two year parole period and you are saying that I am to be happy that I have nine years.

GUMMOW J:   No, we are not saying that.  We are not saying anything like that at all.  We are simply approaching the question of whether the Queensland Court of Criminal Appeal made some error in principle.

MR CUMMINS:   Well, I think, your Honour, if the interpretation of the Crown is correct, to say that I had no remorse, it should have been taken into account that I did have.  I tried to revive her.  It was an unintended act, it never should have happened.  There was the contributing factor of the heroin.

KIRBY J:   Yes, I think we understand that.  The judge also described the difficulty you had trying to revive the deceased and putting her in the shower, and then the difficulty getting the straps on, and all of that is described so it was well recognised.  You see, on the face of it, we have a nine year sentence with a recommendation of parole after four years.  That is the sentence you are appealing against, or seeking leave to appeal against.  So that is all we can look at.

MR CUMMINS:   And also to have Dennis Timothy Ryan’s psychological report ruled inadmissible and taken off my prison file.

KIRBY J:   Yes, but that is internal departmental matters. We cannot control that. We can only deal with judicial orders. That is a requirement of the Constitution.

MR CUMMINS:   If you send it back to the CCA, your Honour, I can present a decent case back in the CCA, to have that taken off my file.

KIRBY J:   We can only do that if you can persuade us that an error has occurred and that it is an error that leads somewhere.

GUMMOW J:   Is there anything more you want to add?

MR CUMMINS:   Mr Gundelach made a submission to her Honour that I should not be punished for the panic aspect of it.  This submission was never acknowledged or spoken about.

GUMMOW J:   Yes.

MR CUMMINS:   She did not consider it a submission worthy of consideration and that is, to me, where there is an error of law lies in that.

GUMMOW J:   Yes, thank you, Mr Cummins.  Mr Byrne?

MR BYRNE:   To take up the ‑ ‑ ‑

KIRBY J:   Mr Byrne, there is one thing I would like to be helped on.  We deal with the matter on the face of the sentence – nine years top, four years non-parole.  Now, something the prisoner just said makes me a little concerned that orders made by judges are not being conformed to.  Now, is that correct, or not?  He says that in Queensland a non-parole period will not be respected.  I would hope that that is not so.

MR BYRNE:   Your Honour, there is a statutory basis for the recommendation for early release on parole.  In the case of the present, or in a case like the present application, it means that he is legally eligible for parole after four years, whereas, without the recommendation he would not be legally eligible until he had served four and a half years.  I cannot speak to any test within prisons so far as release on parole is concerned, I am afraid.

KIRBY J:   He said he did not see that report of Dr Ryan and that it is on his file and will prevent his getting parole.  Could you comment on that, or not?

MR BYRNE:   Only to the extent that if it is there, he has procedures to challenge that, I would have respectfully thought, so far as review or judicial review if the relevant parole board was not willing to consider the other report, namely that of, I think it was, Mr Crittenden.

KIRBY J:   There is such a procedure for judicial review of parole decisions.

MR BYRNE:   There is, your Honour.  All orders affecting prisoners are capable of being judicially reviewed in the Supreme Court.

KIRBY J:   Yes, thank you.

GUMMOW J:   Yes, thank you, Mr Byrne.  Anything in reply, Mr Cummins?

MR CUMMINS:   Yes, your Honour.  Just on the matter of Mr Crittenden’s report, that was taken to the court that particular day just to show that I was under a psychologist outside when I was out of prison and it was not taken to the CCA to tender it at all to bring it into conflict because, once again, it would never have been tendered at my sentence hearing.  I was told that if I pleaded guilty I would get seven years and that was what the offer was to plead guilty.  When we got into court, it did not happen that particular way.

KIRBY J:   Yes, thank you.

GUMMOW J:   Thank you.

MR CUMMINS:   As far as the parole is concerned, you have to meet the – it is quite a bizarre situation in Queensland, how the Corrective Services runs the show here ‑ ‑ ‑

GUMMOW J:   We cannot, in this particular proceeding, get into that sort of question.

KIRBY J:   I think you have put everything you have to put before us.

MR CUMMINS:   As far as making recommendations, Corrective Services, as Mr Barton says in his letter, they do not take no notice of the recommendations, it is just given lip service and that is it.  It is like you have to climb a mountain and jump over the moon and then they will give it to you, and that just does not happen.

KIRBY J:   We are informed and one would expect that you have judicial remedies in that regard if, on inappropriate grounds, the application for parole is refused.  So that would be the time for that matter to be examined, not now.

GUMMOW J:   Is there anything more in reply?

MR CUMMINS:   No, that is all.  Thank you very much, your Honour.

GUMMOW J:   Thank you, Mr Cummins.

The applicant pleaded guilty to manslaughter and, on 14 October 1998, was sentenced to nine years imprisonment with a recommendation for release upon parole after four years and with 597 days pre-sentence custody declared time served.  The Queensland Court of Criminal Appeal refused an application for leave to appeal against that sentence.

In the application now made to this Court no point of general principle arises.  We are not convinced that even were the appeal to be allowed and the applicant then re-sentenced, any lesser sentence would be called for in the circumstances of this case.  Accordingly, the application is refused.  The applicant should be taken again into custody by the Corrective Service officers.

The Court will adjourn to reconstitute.

AT 11.15 AM THE MATTER WAS CONCLUDED