Dunn v The Queen

[2016] HCATrans 19

[2016] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P29 of 2015

B e t w e e n -

GREGORY JOHN DUNN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 12 FEBRUARY 2016, AT 11.46 AM

Copyright in the High Court of Australia

MR S.B. WATTERS:   If it please your Honours, together with MR C.M. TOWNSEND, I appear for the appellant.  (instructed by Lewis Blyth & Hooper)

MR A.L. TROY:   I appear for the respondent.  (instructed by Director of Public Prosecutions (Cth))

KIEFEL J:   Yes, Mr Watters.

MR WATTERS:   Your Honours, in regard to ground 1, the issue of the proviso, what we effectively contend is that contrary to what the plurality of this Court gave as imprimatur in Lindsay, we say in the court below – or we respectfully contend that the court was somewhat Delphic with regard to the possible application of the proviso and the way that it was dealt with at the hearing, such that we say for the reasons we have advanced that this is a matter where special leave ought to be granted to the applicant with regard to ground 1 of his appeal notice.  Your Honours, in regard to ‑ ‑ ‑

KIEFEL J:   I am sorry, just so I am clear about this, are you limiting your argument here to the proviso or are you taking up the other special leave points?

MR WATTERS:   No, I would seek to address your Honours briefly, if I may, verbally on the three grounds at page 525 of the second application book.

GORDON J:   Do you wish to say anything else about ground 1 dealing with the proviso?

MR WATTERS:   No, your Honours, I am content to rest on what was set out in our written submissions.  I do not think I could advance those any further in the sense that we say – and I do not wish to be repetitive – that this is a case where it was not raised fairly and squarely, if I can use those words.  I think that is what in this Court in the majority referred to in Lindsay.  It was not raised fairly and squarely with the applicant at the hearing of the appeal.  When the court below turned to the respondent, there were some brief submissions, the proviso was not raised.  When the court returned to the appellant, there were strictly speaking no matters of reply to raise.  I appreciate the Court does not have before it the transcript of the hearing.  There is some summary of it in the documents contained at the back of the second application book.

GORDON J:   Is not the position that Justice Buss said that the applicant would have the position in reply to deal with the proviso and that the applicant’s counsel did not take up that opportunity?

MR WATTERS:   Essentially, your Honour, yes.  His Honour said that we will hear from him in reply on the proviso point.  There was some issue raised by counsel for the applicant as to the adequacy of the schedule that had been filed setting out the evidence dealing with the proviso.  Counsel for the respondent in the court below was not asked to comment on the proviso or the application of the proviso.  When the court returned to counsel for the applicant they asked “any matters in reply” and counsel said “no”.  Now, I appreciate counsel at that stage could have said “I wish to deal with the questions of proviso”.  They were not fairly and squarely called upon to do so.

KIEFEL J:   Well, it was clear that the court was contemplating the proviso.  How much more does counsel need to know?

MR WATTERS:   Well, your Honours, as this Court said – and I am looking at the decisions in the majority in Lindsay rather than Justice Nettle’s judgment, although the majority did not really disagree with what his Honour Justice Nettle said, but this Court referred to squarely putting to counsel the issue of the proviso and, as I say, it is entirely a matter for your Honours but we say it was obviously an important matter.  With all due respect, the court below, it can be assumed, it considered the papers ‑ ‑ ‑

KIEFEL J:   Well, of course, but whether or not it needs to be put fairly and squarely depends very much on context.  If there has been no mention of the proviso, one can understand that it needs to be put squarely so counsel are alerted to it, but if counsel are alerted to it – and in this case I think it has been put that the respondent put in a schedule of evidence of 30 pages because it had raised the issue in its written submissions, so it is not as if it came out of nowhere.

MR WATTERS:   It is accepted that it did not come out of nowhere, your Honour.  Probably our highest point is that it was not raised verbally with counsel for the respondent in the court below.

KIEFEL J:   What, demanding that they deal with it?

MR WATTERS:   Well, at the least – and I say this with respect – saying to counsel for the respondent, you rely upon the proviso, or even something as minimal as that, but there was not any ‑ ‑ ‑

GORDON J:   Did not Justice Buss do that when he said at the end of the opening submissions, you can deal with it in reply, I am giving you the opportunity to deal with it in reply, and the opportunity was not taken up?

MR WATTERS:   Sorry, your Honours, I might be at cross‑purposes.  That was to counsel for the appellant at the end of the primary submissions.  When the court turned to the respondent in the court below and they raised some fairly minor matters they did not to counsel for the respondent say something to the effect “and you rely upon the proviso, or address or raise the proviso at all”.  The court then came back to counsel for the appellant and effectively said “any matters in reply?” and counsel said “no”.

So, yes, counsel for the appellant had been put on notice, in effect, at the end of their primary submissions, but when the court turned to the respondent who sought to rely upon the proviso the court below did not even, at a bare minimum, say something to the effect of “and you rely upon the proviso”.  So we say, as I have indicated at the outset and I do not think I can take it any further, it was dealt with in a Delphic manner.  The point I would seek to make, with all due respect, is that one could expect the court below to have read the papers and considered the matter and if that was going to be a live issue perhaps sought to ventilate it further, certainly with counsel for the respondent who sought to rely upon it.  I do not think I can take submissions on that ground any further, your Honours, unless there is anything you wish me to raise on that point.

Can I move to the second two grounds and briefly address those?  The applicant was unrepresented at trial and we say that when one looks at the error that was found by the court below – and that is at application book 2, page 497 where Justice Buss found that there had been an error on the part of the trial judge ‑ ‑ ‑

KIEFEL J:   This is about the directions concerning Mr Thomson?

MR WATTERS:   Yes, and his plea of guilty; yes, your Honour.  And we say that ‑ when one couples that with what his Honour Justice Buss noted that Mr Dunn in his opening address, his closing address and in his cross‑examination of Mr Thomson had raised the issue of the plea of guilty, we say that the inadequacies in the direction regarding Mr Thomson, bearing in mind that Mr Dunn was self‑represented, represented a significant error, one to which the proviso ought not have been applied ‑ ‑ ‑

KIEFEL J:   Do you take that error any further than the Court of Criminal Appeal put it, I think, at paragraph 256, that there was a real risk that, absent that direction, the jury could attach some weight to the plea in evaluating the evidence against the applicant?

MR WATTERS:   Only in the sense that we would – and I say this with respect – only in the sense it would probably heighten the risk in the sense that – I mean, it was a central tenor to the Crown’s case, Mr Thomson has pleaded guilty.

KIEFEL J:   It was a stronger part against your client than against the co‑accused.

MR WATTERS:   Essentially, yes.  So, we would say that that amplifies the error and buttresses our contention as to how Mr Dunn should have been dealt with in the court below.

KIEFEL J:   But if you accept the risk that it created in the way in which the Court of Criminal Appeal stated it, that is to accept, is it not, that it is not outside the proviso and then you have got the difficulty of the proviso having been applied.

MR WATTERS:   What we, effectively, contend, your Honour, is that the error was such that Mr Dunn did not receive a fair trial and, on that basis, the proviso ought not to have been applied and the appeal ought to have been upheld.

Your Honours, with regard to ground 3 of our appeal notice, as the Court below found, no direction was given by the learned trial judge that it was possible that none of the four accused had conspired with Mr Thomson, whereas the Court below noted – the primary judge had said it may be one, may be two, may be three, may be four, but did not indicate that it may be none of them.  We say that failure by the trial judge amplified the significance of the impugned non‑direction as to the use to be made of Mr Thomson’s plea of guilty which, coupled with the applicant being in person, was such that the proviso ought not to have been applied and the appeal ought to have been upheld.  Your Honours, unless I can assist you any further, those are our verbal submissions in support of the three grounds.

KIEFEL J:   Yes, thank you, Mr Watters.  We need not trouble you, Mr Troy.

In our view, there are insufficient prospects of success to warrant a grant of special leave.  Special leave is refused.

AT 11.57 AM THE MATTER WAS CONCLUDED