Doff v The Queen

[2005] HCATrans 780

[2005] HCATrans 780

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S198 of 2005

B e t w e e n -

ROBERT BART DOFF

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 SEPTEMBER 2005, AT 11.07 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please your Honours, I appear for the applicant in this matter.  (instructed by John de Mestre & Company)

MR R.J.H. MAIDMENT, SC:   If it please your Honours, I appear with my learned friend, MR P.R. McGUIRE, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, this application raises what is submitted to be an important question in the administration of justice in criminal cases.  It concerns the powers of a Court of Criminal Appeal when reviewing the conduct of trial proceedings where it is contended that there has been a miscarriage of justice and the scope of the powers of the Court of Criminal Appeal, in particular, your Honours, whether the Court of Criminal Appeal can have regard to and take account of applications that were made in the absence of the jury by the prosecution and the ‑ ‑ ‑

GLEESON CJ:   Mr Byrne, were the grounds of appeal that the Court of Appeal was dealing with those that appear on page 141 in paragraph 19?

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   Both of those grounds of appeal use the expression “having regard to the evidence”.

MR BYRNE:   Yes.

GLEESON CJ:   That would explain why the Court of Appeal had regard to the evidence, would it not?

MR BYRNE:   Well, your Honour, that formulation of the grounds of appeal was taken from the terms of the applicable legislation, namely, section 6 of the Criminal Appeal Act.  The contention that was made in the Court of Criminal Appeal which is continued in this Court was that the applications that had been made by the prosecutor in the court of trial were matters that could and should have been taken into account by the Court of ‑ ‑ ‑

GLEESON CJ:   And they were taken into account in paragraph 25 on page 143, were they not?

MR BYRNE:   They were recognised as having occurred, but, in my submission, the approach taken by the Court of Criminal Appeal is more fully explained and set out in paragraph 27 which is shortly after that passage that your Honour the Chief Justice has referred to.  In paragraph 27 after reference to the legislation and, in particular, section 6(1) of the Criminal Appeal Act and reference to the decision of this Court in Jones v The Queen and M v The Queen, the court held that – and I quote from paragraph 27:

Whether or not the verdict was unreasonable . . . is to be determined by reference to the way in which the case was left to the jury, and to the evidence which was admitted in the trial.  In the end the case was opened and left to the jury in precisely the same terms, and the attempts to amend the particulars, which were made in the absence of the jury, were of no significance.

GLEESON CJ:   Now, that is a response to the submission that is recorded in paragraph 26.  Does paragraph 26 fairly record the argument that was put to the Court of Appeal?

MR BYRNE:   Yes, in broad terms, your Honour, yes.

GLEESON CJ:   Then the proposition was that what went on showed that the Crown itself was uncertain as to what the information was.

MR BYRNE:   Yes.

GLEESON CJ:   What is the relevance of the mental state of certainty or uncertainty of the Crown, which I presume means the prosecutor?

MR BYRNE:   Yes, your Honour, certainly.  If the prosecutor, as he was in this case, was seeking to change what, in my submission, were effectively the elements of the offence, then it indicates an uncertainty on the part of the prosecutor which, in the context of a criminal trial, should translate to a reasonable doubt about whether or not the case actually left by the prosecutor can be established to the criminal standard.  What the prosecutor had set out to prove was a certain case.  The evidence did not meet that case and the prosecutor sought to amend his case by changing it in effect.

Now, that application was ultimately refused, but the attempt to change the case indicates, in my submission, an acceptance by the prosecutor of the weakness of the case which was originally sought to be relied on and, alternatively, the strength of the case which was sought to be substituted for it.

It is, in effect, a proposition - this was, in fact, an application that was made in the course of the trial proceedings that the prosecutor in these circumstances should be invited to withdraw the charge because what the prosecutor was effectively saying in the absence of the jury was an acknowledgment that there was a weakness in the case as pleaded, that acknowledgment being, as it were, contained in the attempt to change the case as pleaded.

It is an important matter in the context of this particular case which, as your Honours are aware, involved a charge which is shortly described as insider trading.  The elements of an offence of that kind are unusually, in the context of criminal law generally, long and are pleaded with some precision.

If I can take your Honours perhaps to the application book at page 142 where, from the judgment of the Court of Criminal Appeal, the elements of the offence are set out and as that discloses, it takes a full page to set out the elements of this very technical criminal charge.  Under part (b), as it is written in the judgment of the Court of Criminal Appeal at page 142 of the application book, what is and what was known as the second element of the offence, namely, the information which the alleged insider trader is alleged to have improperly used, is there set out and it is information of a very precise kind.  It is information firstly that:

Mr Gerard McGowan said words to the effect that there was a deal for the merging of Impulse’s business with Qantas -

Now, those precise words have a precise meaning.  When Mr McGowan came to give evidence, he did not give evidence in the terms that were expected, nor did he give evidence, in our submission, to the effect that was alleged by element (ii) of the charge.  What Mr McGowan in fact said in his evidence was that he had had a conversation in which he had disclosed that he was involved in a deal for the sale of part of Impulse to Qantas without specifying what part or without elaborating any further other than to say that it was a matter that was awaiting or required the approval of the ACCC. 

But the precision with which the matter was pleaded and the way in which that element is set out was an important matter.  What happened when Mr McGowan gave that evidence which departed from the manner in which the matter was pleaded, there was an application to alter the pleadings to accommodate the evidence that he had given in the trial and the application was that the terms of the indictment, in effect, should be altered so that the information which the applicant, as he is before your Honours’ Court, was in possession of when he purchased the shares, that is, the inside information, was not words to the effect that there was a deal for the merging of Impulse’s business with Qantas, which necessarily had the obvious consequence that Qantas was effectively taking over Impulse. 

The new words were that there was to be a sale of part of Impulse to Qantas which at the same time necessarily had the effect that Impulse would be maintained as a separate entity, at least in part.  But the nature of the two pieces of information was entirely different and the Crown recognised that through its application to have the terms of the indictment effectively changed so as to accommodate the new version of events that was given by Mr McGowan.

CALLINAN J:   Each was market sensitive though, was it not?

MR BYRNE:   Well, certainly the fact that there was a deal for the merging of Impulse’s business with Qantas was market sensitive.

CALLINAN J:   Did not Mr McGowan say also that he had warned Mr Rivkin that he, Mr Rivkin, could not trade in the shares with that knowledge?

MR BYRNE:   That was said in Mr McGowan’s evidence and evidence of others to have been said.

CALLINAN J:   That indicates the market sensitivity of that version also, does it not?

MR BYRNE:   Well, it may, but the expert evidence was not directed perhaps in the same way to that material.  It is true that the expert evidence was – there were questions asked about the market sensitivity of a statement “I’m going to sell” or “I’m intending to sell a part of Impulse to Qantas”, but, of course, the market sensitivity of a statement of that kind depended entirely upon further information, namely, what part of Impulse was to be sold to Qantas?

CALLINAN J:   Except Mr McGowan thought it was market sensitive because he had warned Mr Rivkin in your client’s presence not to trade – or he had told him that he had warned Mr Rivkin not to trade.  The only reason why he would give that warning was because his perception at least was of market sensitivity.

MR BYRNE:   What your Honour says is quite right, but the fact is that there was different information required to be proved according to what was actually said.  The allegation against this applicant was not that he possessed market sensitive information of an unspecified kind, it was market sensitive information of a particular kind and it was expressly nominated in the terms of the charge what that particular market sensitive information was.  If he was in possession of some other market sensitive information, he would not have committed the offence as charged, and that is effectively what the prosecution’s application sought to do.

Now, the point that this application raises, in my submission, for this Court is the extent to which the Court of Criminal Appeal can take into account matters that reflect on the quality and the cogency of the evidence, but which are not matters that are in fact presented to the jury.  The way ‑ ‑ ‑

GLEESON CJ:   The relevant fact being the apparent state of uncertainty on the part of the Crown Prosecutor.

MR BYRNE:   Well, not a state of uncertainty for practical purposes, a certain acknowledgment by the prosecutor ‑ ‑ ‑

GLEESON CJ:   An admission.

MR BYRNE:    ‑ ‑ ‑ that the case that he had originally presented was not supported by the evidence ‑ ‑ ‑

GLEESON CJ:   An admission by conduct.

MR BYRNE:   Of a kind, your Honour, in the sense that where there is an application made to alter the terms of a criminal indictment it does represent, on the part of the prosecutor, an acknowledgment and an acknowledgment with some certainty that the case originally presented needs in some way to be changed.  Now, indictments can be amended in various particulars without injustice being caused and that is a frequent occurrence in the course of criminal trials, but indictments cannot be amended so as to change the elements of the offence and that is what this particular application amounted to, because it was not an uncertain acknowledgment, a certain acceptance of the fact that the evidence as presented did not support the elements of the offence as originally charged.  The question of general ‑ ‑ ‑

GLEESON CJ:   If it was a relevant fact, why was it not in evidence in front of the jury?  Why did somebody not prove to the jury that the prosecutor did not appear to be very confident?

MR BYRNE:   I have to say I have not considered that question, your Honour, but it did not seem to be a proper approach in the course of a criminal trial to seek to call witnesses to give evidence about what the prosecutor had said in the absence of the jury.

GLEESON CJ:   I understand that.  I am just suggesting that it is odd to think that if the conduct of the prosecutor constitutes some kind of admission against him based on his own mental state, perhaps the result of how he felt that morning, perhaps the result of pressure from the judge or his opponent, then if it were relevant for the Court of Appeal to take it into account, it would be relevant for the jury to take it into account, would it not?

MR BYRNE:   Well, I should emphasise, your Honour, that where I put propositions such as the change of mind of the prosecutor or the attitude of the prosecutor, I do not put that in a personal sense, of course.  It is a matter that is representative of the state of the case presented by the prosecution and its relation to or relationship with the evidence that has been adduced in the proceedings.  The point was taken in the absence of the jury that a certain course should be taken, namely, that the prosecution should either be withdrawn or, alternatively, that there should be a verdict by direction, but that legal issue was not determined in the applicant’s favour.

The argument that is sought to be put here and the point that I would submit is one of general public importance is the scope of the Court of Criminal Appeal, the scope of the powers of the Court of Criminal Appeal to look at matters beyond the precise evidence before the jury and matters that were before the court of trial.

GLEESON CJ:   Mr Byrne, do you take any issue with paragraph 38?

MR BYRNE:   Of the Court of Criminal Appeal?

GLEESON CJ:   Yes, page 147.

MR BYRNE:   Yes, the conclusion that “merging” is equivalent to or can be the same as the sale of part of a business is not one which, in my submission, should be supported.  The two concepts ‑ ‑ ‑

CALLINAN J:   You really have to say that to succeed, do you not?

MR BYRNE:   Yes, I think that is right, I do, your Honour.  Yes, I accept that.  There was, as your Honours are well aware, that this Court has in relatively recent times relatively frequently looked at the question of the manner in which a Court of Criminal Appeal should exercise its powers under section 6(1) of the Criminal Appeal Act and the various other provisions which are equivalent provisions in all of the other States, apart from New South Wales in the decisions of the Court in Whitehorn in 1983, Chamberlain in 1984, Morris in 1987, Chidiac 1991, then the important decision of M in 1994, as well as Jones in 1997 and, more recently, a case reported as MFA in 2002.

All of those cases have looked at this question of the extent of the powers of the Court of Criminal Appeal under a provision such as section 6(1).  In the most recent decision, that is, in MFA the Court said there that the very terms of section 6(1) appear to confer a very large power

to be applied by reference to criteria that are not stated in restrictive or narrow terms.

GLEESON CJ:   We are familiar with that.  That is how we spent yesterday, looking at that, Mr Byrne.

MR BYRNE:   I am sorry, I did not realise.  But the proposition put here is that what the Court of Criminal Appeal had done is to approach section 6(1) in very narrow and restrictive terms.  It should have taken a broader view of the evidence and examined matters of significance that occurred in the absence of the jury.  Your Honours, those are my submissions.

GLEESON CJ:   Thank you, Mr Byrne.  We do not need to hear you, Mr Maidment.       

We think that there are insufficient prospects of success of an appeal in this matter to warrant a grant of special leave and the application is dismissed.

We will adjourn for a short time to reconstitute.

AT 11.27 AM THE MATTER WAS CONCLUDED