Dickson v The Queen

[2010] HCATrans 105

[2010] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M11 of 2009

B e t w e e n -

KEVIN JOHN DICKSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 APRIL 2010, AT 9.26 AM

Copyright in the High Court of Australia

MR T.F. DANOS:   If the Court pleases, I appear for the applicant.  (instructed by the applicant)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MS D.I. PIEKUSIS, for the respondent.  (instructed by Solicitor for Public Prosecutions – Melbourne)

GUMMOW J:   Mr Danos, could we look first at your draft notice of appeal in its amended form, which we have at page 293?

MR DANOS:   Yes, your Honour.

GUMMOW J:   That sets out five grounds.  As presently instructed, we think you would be best advised to devote your primary attention this morning to the grounds other than 3 and 5.

MR DANOS:   If the Court pleases.

GUMMOW J:   In developing the other grounds, link to Ahern and Darby and that line of territory.  Should we not be having regard to what Justice Jenkins was isolating as the issues before her Honour at pages 18 and 19?  If you turn to page 18 you see that she said you put four issues concerning the new presentment.  I suppose our question is, are we correct in thinking that one or more of those four grounds are intended to be encompassed by the outstanding grounds in your present amended notice of appeal?

MR DANOS:   That is correct, your Honour, particularly the fourth matter where Judge Jenkins indicates that, as it is set out there on page 19, the effect of the acquittal of Holmes and Purdy by direction of the trial judge, Judge Davey, had the impact of creating a situation where the evidence that related to them, and a careful analysis of that evidence as to its admissibility, so that it did not impact on the acquittal that had been directed by Judge Davey. 

The best analogy that I have been able to find is the Rogers decision, where the trial judge ruled – that is Rogers v The Queen 181 CLR 251, where the original trial judge ruled as inadmissible a series of records of interview because they were held to be involuntary. At the subsequent trial of Rogers, it was sought to lead the evidence in relation to those records of interview and the High Court said in the decision that they were precluded from doing that because there had been a judicial determination that the evidence was inadmissible and that therefore meant that that ought not to undermine that judicial determination.

In my respectful submission, what occurred in the second trial of this applicant is that effectively the first trial was relitigated in terms of the Crown case with absolutely no regard to the acquittals of Holmes and Purdy.

GUMMOW J:   Does that differentiate this case from the situation in Darby?

MR DANOS:   Your Honour, the difference in Darby – and it is in my submission important to understand the circumstances in which Darby came to the High Court.  Darby came to the High Court after his co-accused, Thomas, had been directed an acquittal by the Court of Appeal.  What had occurred originally at the trial is that Thomas and Darby had both been convicted.  Thomas appealed alone to the Court of Appeal.  The Court of Appeal said on the evidence admissible against Thomas, it was not open to convict him of that conspiracy, the conspiracy to rob.  It could have been conspiracy to commit any number of illegal offences.

Having entered an acquittal in relation to Thomas, Darby went to the High Court.  The only question that the High Court was tackling, in my submission, was was the conviction of Darby sustainable and the answer to that was yes because he had made admissions of his involvement in the conspiracy to rob, which made it different to his position in relation to Thomas and which is why, in this case, there is no such evidence that is admissible against Dickson from either Holmes or Purdy because firstly, Holmes and Purdy ought not to be there, and Dickson made no admissions of his involvement in the alleged conspiracy.

CRENNAN J:   Is there not other evidence which might be considered direct evidence of his participation?

MR DANOS:   In an illegal activity, yes, but not potentially the conspiracy that he was charged with, namely conspiring with Holmes and Purdy to steal the cigarettes.  My point, your Honour, ultimately, is that if there was a trial determined on the admissible evidence, it would be a totally different trial than the one that was ultimately conducted and that trial would have excluded – if my submissions are correct – all of the evidence that related to Holmes and all the evidence that related to Purdy because there was the judicial determination that they were not participants in the conspiracy.

HAYNE J:   If that is right, and I do not know whether it is, is that not simply a symptom – that is, the admissibility of evidence is a symptom of a more radical problem, the more radical problem being that – or identified as being whether it is open to the Crown after a directed acquittal to file a new presentment in which it is alleged that those who have been acquitted by direction were conspirators.  The questions of admissibility turn on whether or not that presentment can properly be filed.

MR DANOS:   My answer to that, your Honour, is that a presentment which names Holmes and Purdy as conspirators undermines the judicial decision of Judge Davey because it is seeking to say by its assertion in the presentment that they are participants in the conspiracy.  Your Honours would all be aware of the ultimate impact that that potentially has in terms of the admissibility of evidence because once they are participants and there is reasonable evidence of their participation, then the Ahern principle comes into play.  If there is ‑ ‑ ‑

HAYNE J:   In this matter, there was led as evidence, was there not, intercepted conversations between Holmes and Purdy?

CRENNAN J:   Yes, surveillance.

MR DANOS:   Yes, Holmes and Purdy, and even when as far as a telephone call between Purdy and a man called Zimmerman, all of which was sought to demonstrate the conspiracy and the nature of the conspiracy and their involvement in it.  In my respectful submission, if the threshold question is correct, then in my submission, none of that evidence would have been led.  Where that would have ultimately led in terms of the conspiracy that was alleged is almost impossible to determine until that exercise, in my submission, is actually done, the exercise of determining the admissibility of all of that evidence, and that is ultimately why, I suppose the best that I could ever grasp in the sense of the final resolution is that there be a retrial to determine those issues.

GUMMOW J:   Mr Danos, I think it might follow from what has been said in the exchange this morning that you might need to supplement the existing grounds of appeal to make quite clear the complaint really you have as to the filing over.  You say that should not have happened, do you not?

MR DANOS:   No, I am not saying that that should not have happened.  What I am saying your Honour, is that it should not have happened in the form that it was in.  In other words, it ought not to have been allowed to be filed with Holmes and Purdy alleged as conspirators.

GUMMOW J:   I see.

MR DANOS:   I do not believe there is any base on which I could have argued – it might have been a totally different thing if they had alleged that it was just a conspiracy between Wang and Dickson and that they had

sought to file that presentment.  That would open up, in my submission, potentially different arguments.

HAYNE J:   You would need, would you not, if leave were to go, to challenge the particular leave that was granted to file over a presentment alleging conspiracy with Holmes and Purdy, lest we focus only on the symptom of what is – if there is a problem, the problem may lie deeper than the question of evidence.

MR DANOS:   I do not see any difficulty with pursuing that course, your Honour.

HAYNE J:   You may not.  Mr McArdle might.

MR DANOS:   I will leave that to him to tackle, your Honour.  It would seem to me, with respect, your Honours, that we have tackled the essential issue and unless there are any other matters ‑ ‑ ‑

GUMMOW J:   Perhaps we should hear from Mr McArdle.

MR DANOS:   Thank you.

MR McARDLE:   Your Honours, if the Court pleases.  Your Honours, the question is whether or not the judicial determination by the acquittal of Purdy and – I think the other man’s name is Thomas ‑ ‑ ‑

MR DANOS:   Holmes.

MR McARDLE:   Holmes, I am sorry, thank you - Holmes and Purdy is being attacked, either by filing the presentment or by proceeding in the trial by adducing evidence of the part played by Holmes and Purdy.  It is submitted, your Honours, that that really is ultimately a matter of evidence.  For example, evidence of the acts – supposing all were to be tried together, assuming the existence of reasonable evidence – the evidence, for example, of actions of Holmes and/or Purdy would be admissible against this applicant.  This applicant might be convicted, the others might be acquitted.  There is no difficulty as far as that is concerned.

The difficulty then is whether or not upon a retrial in which Holmes and Purdy are missing – although are alleged as co‑conspirators in the presentment – whether that is an attack upon the earlier determination.  It is submitted not because it is simply a matter of the admissibility of evidence in this particular case of the overt acts of Holmes and Purdy.

HAYNE J:   What would the jury have to conclude before taking account of the content of the conversation between Holmes and Purdy, led in evidence at the later trial of Dickson?

MR McARDLE:   They would be, pursuant to Ahern, in receipt of an instruction that the evidence was available to them.  The determination that there is reasonable evidence of a conspiracy and that they were involved in it is of course to be made by the judge, according to Ahern’s Case.

HAYNE J:   Is that consistent?  Is that set of steps consistent with the prior entry of acquittal in respect of Holmes and Purdy, is the question.

MR McARDLE:   If I can approach it this way, it is not necessarily inconsistent because there might be actions by Holmes and by Purdy, if you like, pursuant to the conspiracy which would be admissible against Dickson.  They themselves - it might not be directly admissible against them.  For example, they might be acting innocently or the jury might not be persuaded that they were doing anything other than acting innocently, whereas in fact they could take the view that they are acting as agents of Dickson.

HAYNE J:   In pursuance of a conspiracy to which they were parties?  Is that a necessary element of the chain of reasoning that is invited?

MR McARDLE:   It would have to be, I suppose, in light of the way the presentments have been drafted, and I suppose the way the case has been presented to the jury.

HAYNE J:   Yes.

MR McARDLE:   However, their acquittal would always remain and there would be no verdict taken in the second trial as to their part in the conspiracy.  In fact, it may be the situation might need to look more carefully at the charge that the – if I can put it this way.  It would be open to the jury to conclude that Dickson was guilty, but not the others, either at the trial of the others, or at the second trial of Dickson.  Darby’s Case establishes that, if you like, one person could be convicted of this particular conspiracy, even though a number have pleaded.  Darby’s Case is now in legislation in Victoria, and this was a legislative conspiracy, but the effect is the same.

HAYNE J:   What is the legislation that is engaged?  I do not think I am ‑ ‑ ‑

MR McARDLE:   We supplied to the Court, we thought, 321 of the Crimes Act, and 321B relates to the consequence of an acquittal of one or

more of the co‑conspirators.  Before Darby’s Case, of course, it was thought that that was the complete end of the conspiracy.  Darby’s Case held otherwise.  Now, conspiracy in Victoria is a creature of statute so that had to be added in to continue that ‑ ‑ ‑

HAYNE J:   Just as in Darby, so too in 321B, a lot of work is done by the “unless” clause.  A lot of work may have to be done by the “unless” clause at the end of 321B.

MR McARDLE:   Yes.

HAYNE J:   The real debate may often be what is the content of that “unless” clause.

MR McARDLE:   That would save, your Honours, the sort of situation where you get a ground of appeal based upon inconsistent verdicts or something of that nature.  It would do, it is submitted, nothing more than preserve that right of appeal which might otherwise be in some doubt.  This is not one of those cases.  Your Honours, I am not sure, at least for the present purposes, I can add very much more to the submissions I wish to make in relation to that issue, unless there is something the Court wishes to raise with me.

GUMMOW J:   We will hear what Mr Danos says in reply.

MR McARDLE:   Thank you, your Honour.

MR DANOS:   Your Honour, with greatest respect to my learned friend, he makes the bootstraps argument, in my submission.  He starts off by the proposition assuming there is reasonable evidence against Holmes and Purdy.  We know there is no reasonable evidence against Holmes and Purdy because there has been a judicial determination that there was no case to answer.  That is the very significant difference in this case.  If it was a jury verdict, we might be in a different position.  This is not a jury verdict and the real issue, in my submission, is that we have a judicial determination which indicates that, pursuant to the test that is required, a no-case submission position, that there is no case to answer by either Holmes or Purdy. 

So we cannot assume that there is reasonable evidence admissible against Holmes and Purdy which allows all of that evidence to be admitted and then, in some magical way, ultimately say the jury might not convict Holmes and Purdy.  It, in my respectful submission, defies logic.  I concede that logic is not always the primary basis for the submissions, but in this instance, in my submission, it is fundamental that here we have a situation where it was just simply not open.

In fact, the statutory legislation that the Crown wishes to rely on, in my submission, determines that if the question had been properly resolved at the conclusion of the first trial – his Honour Judge Davey in fact, if I put it colloquially, got it wrong.  If one looks at section 321(2):

For a person to be guilty under subsection (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement –

(a)must intend that the offence the subject of the agreement be committed; and -

et cetera.  Now, at that stage, your Honours, having directed acquittals in relation to Holmes and Purdy and the conspiracy alleged only name those three – Holmes, Purdy and Dickson – there was no one other party to the agreement which could sustain that conspiracy.  The subsequent inclusion of Wang, one of the suspects, was simply tactical by the Crown to overcome such a proposition.

So, in my respectful submission, this issue of this admissibility, this over filing of the presentment or putting it a different way, the issue of Darby, which really only went to the conviction, not to the admissibility of evidence ought to be something that this Court ought to deal with, in my submission.  Unless there are any other matters, your Honours, those are my submissions.

GUMMOW J:   Yes, thank you, Mr Danos.  We will take a short adjournment.

AT 9.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.56 AM:

GUMMOW J:   The applicant has leave to add to the present proposed grounds of appeal a ground to the effect that Judge Jenkins erred in permitting the filing of a presentment which alleged that Holmes and Purdy were parties to the alleged conspiracy.

We dismiss the special leave application insofar as it relies upon grounds 3 and 5 of the present draft at pages 293 and 294 of the application book.  Grounds 1, 2 and 4, plus the added ground just indicated are referred for further consideration by an enlarged Bench of the Court.  The parties should be prepared to argue on that occasion as on an appeal.  It will be a one‑day case.  Does that sound reasonable, gentlemen?

MR McARDLE:   I would think so, your Honour.

MR DANOS:   Yes, your Honour.

GUMMOW J:   Now, is that clear?  So there is a grant of leave to amend in respect of the filing over point, and reference in of that, plus grounds 1, 2 and 4.  Grounds 3 and 5 are dismissed.

MR McARDLE:   If the Court pleases.

MR DANOS:   If the Court pleases.

GUMMOW J:   We will adjourn to reconstitute.

AT 9.57 AM THE MATTER WAS CONCLUDED