Dunn v The Queen; Jones v The Queen

[1992] HCATrans 73

..

4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M48 of 1991

B e t w e e n -

GARY WILLIAM DUNN

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M49 of 1991

B e t w e e n -

PHILLIP FRANCIS JONES

Applicant

and

THE QUEEN

Respondent

Dunn 1 12/3/92

Applications for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 12 MARCH 1992, AT 10.56 AM

Copyright in the High Court of Australia

MR P.F. TEHAN: If the Court pleases, I appear for the

applicants, Dunn and Jones. (instructed by Bullard

Solicitors)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

my learned friend, MR D.G. JUST, for the Crown in

each case. (instructed by J. Buckley, Solicitor to

the Director of Public Prosecutions (Victoria))

MR TEHAN: If the Court pleases, these applications warrant

the grant of special leave because they raise for

consideration of this Court two questions

concerning the conduct of a fair trial of accused.

These questions concern the tests applicable to ensuring a fair trial where an application for discharge of the jury is made.

The first question, ground A(i), is whether a

reference by a police witness to having knowledge

of an accused in circumstances obviously adverse to

an accused, is sufficient to justify a requirement

that the judge discharge the jury. That question,

it is conceded, involves the exercise of judicial

discretion; that the exercise of such a discretion,

it is submitted, is a basis for the grant of

special leave, where the wrongful admission of

evidence leads to the view that the jury may not

have returned the same verdicts.

Police officers daily give evidence in courts against persons charged with criminal offences, and

as such must be mindful of the prejudicial effect

the raising of knowledge of the accused may have

upon the jury. Deliberate attempts by police to

raise matters of prior association with accused

should be strongly resisted, it is submitted,

because they suggest the accused is of bad

character, and it is trite to state that the

raising of matters touching upon the bad character

of an accused are fundamentally at odds with the

fair trial of an accused.

The approach to the answer of the question

ought to be, it is submitted, that referred to by

the Full Court of the Supreme Court of Victoria in

Reg v Knape, (1965) VR 469, and is the first case

in the folder of authorities handed to the Court

this morning. If I could take the Court to that

case and, in particular, what was said by the
Chief Justice at page 473 of the report at line 20,

where His Honour said:

However, if evidence of bad character is

inadvertently and improperly given there is

undoubtedly a discretion in the trial judge to

determine whether or not the jury should be

Dunn 12/3/92

discharged, a discretion to be exercised

according to the circumstances of the

particular case.

MASON CJ:  I am having a little difficulty here, first of

all in dismantling the file so that I can secure the

judgment, and when I have succeeded in doing that,

I note that the pages are not paginated, so I cannot find 473.

MR TEHAN:	I am sorry, Your Honour, it is the third page in the report of Knape's case.
MASON CJ:	The left hand or right hand?
MR TEHAN:	On the right hand side, line 20, Your Honour.

MASON CJ: Yes, I see.

MR TEHAN:	I will not repeat what I have just read from the case but simply go on to indicate that the
Chief Justice went on to say:

An examination of the authorities leads us to the view that unless it can be said, upon the

evidence, that the irregular disclosure could

not in any way affect the judgment of the jury

in coming to their decision of guilty or not
guilty, the trial judge should exercise his
discretion in favour of the accused.

Now, in my submission that approach has not been disapproved of. There are cases, such as the

Reg v Boland and Reg v Vaitos, that suggest that if

the Chief Justice was seeking to lay down a rule of

law in Knape's case then that is wrong, and I

concede that. I concede that the matter is one of

discretion, but it is really a question of the

approach to be adopted and, in my submission, the approach to be adopted ought to be that indicated in Reg v Knape. The significant matter about cases

such as Boland and Vaitos is that they concern

wrongful prejudice occurring outside of the trial

process.

MASON CJ: But the problem is this, is it not, that if you

look at Knape, there was evidence of bad character

given by the police witness?

MR TEHAN:	Yes.
MASON CJ:	Now, you cannot say that what was said on this

occasion is evidence of bad character in that

sense.

MR TEHAN:  It certainly was not specific evidence of prior criminality, Your Honour, but it was evidence which

Dunn 3 12/3/92

must have, irresistibly, led the jury to the view

that the accused had prior associations with the

police and, therefore, was a person of bad

character. It was not as obvious as putting his

prior convictions, if he had any, to the jury but

it had the same effect, because what the witness

said was that he had had cause to speak to the

accused before, and that could only lead the jury

to the view, in my submission, that the man was a

person of bad character.

MASON CJ: But why? I mean, it might invite a juror to

speculate what were the associations that led the police officer to make that comment, but it could

only be a matter of conjecture and speculation.

MR TEHAN: 

And that is the very thing that the jury should

not do, speculate upon this man's prior association
with the police.

MASON CJ: 

But what could speculation lead them to?

MR TEHAN: 

It could lead them to this view, that this man

had prior convictions.

MASON CJ: That is going a long way, is it not?

MR TEHAN:	No, it is not, Your Honour, because what the witness said was, "I have had cause, I have had
reason, there has been an occasion when I have
spoken to him before", that is the effect of his
evidence and that could only mean that Jones was a
man who had had prior associations with the police and it is common that - - -

MASON CJ: That he had a prior association with this police

officer, but I just do not see how a juror could

possibly be justified in concluding that he had a

past record of convictions.

MR TEHAN:  It may be that the jury would think that he had

been in trouble before, he might not have been

convicted but he might have been in trouble with

the police before in some way.

DAWSON J:  Why? I mean, policemen have had occasion to

speak to me on various ..... I hope no one would

draw any inference from that?

MR TEHAN:  Your Honour, that was not put forward as being

the basis for Keating saying what he did. In the

Court of Criminal Appeal it was suggested that

Keating had played football with the applicant. I

might say that that evidence came on the morning of

the hearing of the application before the Court of

Criminal Appeal, and came in the face of affidavit

material by my instructing solicitor requesting

Dunn 4 12/3/92

that the Crown indicate on what basis Keating gave

his evidence, and that material was not answered

until the day of the hearing before the Full Court

and, indeed, the applicant - - -

DAWSON J: Well, that is up in the air, is it not, it

is - - -

MR TEHAN:  Yes, and, indeed, in fairness the Court of

Criminal Appeal took the view that they really did

not place much weight upon that evidence at all,

and they did not think that it was really likely to

be truthful in the end.

But this is a case, it is submitted, where the police officer, when he is given the opportunity

moves in and says, "I have had cause to speak to

him before", and that could only lead to one view.

It is important to consider this, and that is what

the impact on the jury was and the impact on the

jury, in this case, was absolutely devastating

because -

MASON CJ: 

I would have thought there was a lot of evidence,

in this case, that would have had a much more
devastating impact on the jury than this stray

remark.

MR TEHAN: 

One might say that, Your Honour, but in fact the

reality was that the impact was very strong, and

Your Honours would have observed that in the

transcript counsel for both applicants complained
that the jury had laughed, that they had winked to

each other, that they had nudged each other, and

the effect of it was as if to say, "Well, we know

what he means, don't we? This fellow has obviously

had some prior criminality".

Now, it is submitted that where the wrongful admission of evidence, touching upon the character

of the accused, occurs within the trial, the

requirement to discharge the jury is greater than

in a case such as Boland or Vaitos, which is a mere

regularity occurring outside of the trial process.

It is further submitted that the approach to this

question by the Court of Criminal Appeal was

fundamentally flawed in two significant ways.

Firstly, the court stated that the failure to hold

a voir dire effectively estopped the applicants

from claiming that the judge was in error in

allowing the trial to proceed. That appears at

page 47 of the appeal book. The court doubted the proffered explanation before it, at page 46 of the

appeal book - - -

Dunn 12/3/92

GAUDRON J: But, Mr Tehan, at the end of the day the

question does remain whether the trial judge

improperly exercised his discretion.

MR TEHAN:	Yes, I concede that, Your Honour.
GAUDRON J:	And His Honour seems to have been well aware of

what was involved.

MR TEHAN:  I accept that, Your Honour, and it is submitted

that the trial judge did not properly exercise his

discretion, because the trial judge had formed the

view, significantly, that it was open to the jury

to come to the conclusion that the relationship

between Keating and Jones was, to use His Honour's

words, a professional one.

GAUDRON J: But His Honour offered to give some sort of

direction, obviously having formed the view that

whatever had occurred was capable of being cured by

a direction, and counsel for your clients declined

His Honour's offer.

MR TEHAN:  And His Honour never gave any direction, although

His -

GAUDRON J: At your request;

MR TEHAN:	- - - although His Honour, in his ruling on the discharge application, indicated that he would give
such a direction.

GAUDRON J: But did counsel not request him not to?

MR TEHAN: Counsel then and there said, "Certainly,

Your Honour, we do not want any direction now

because it would only highlight the matter", and

one can well understand why counsel formed that

view, because it would highlight the matter that

was the subject of complaint.

It is submitted that it is not the law that a

voir dire be held on prejudicial and inadmissible

material before a discharge of jury be granted.

Neither the judge nor the Crown took such an

approach which could have highlighted the

'prejudice. Hindsight is not the test as to whether

or not a discharge application should succeed.

Rather the test is, it is submitted, was there a

real need to discharge the jury in the light of the

impact of the evidence on the jury, bearing in mind

the approach adopted by the court in Reg v Knape.

That test was not the test formulated by the Court

of Criminal Appeal, and it is submitted for that

reason that special leave should be granted.

Dunn 6 12/3/92

Second, the Court of Criminal Appeal stated that the evidence was of no effect since there was

more compelling evidence of the applicants' bad

character, in that they were companions of a

co-accused Brooks, page 47 of the appeal book. is tantamount to suggesting that merely because one

associates with criminals one is of bad character,

and thereby any evidence which suggests bad

character is of no effect, and it is submitted in

that second way that the Court of Criminal Appeal

applied the wrong test as to whether or not the learned trial judge was correct in refusing the application for discharge.

It is finally submitted, in relation to this

ground ahd the question that arises out of it - - -

DAWSON J:	They gave evidence, did they, the accused?
MR TEHAN:	They gave evidence on oath, Your Honour.
DAWSON J:	And admitted being there, and admitted to taking

Mrs Dempsey?

MR TEHAN:  They did not admit kidnapping, they admitted

being in the vehicle and having association with

Mrs Dempsey, yes, but in circumstances which it was

contended were non-criminal - - -

DAWSON J: Yes, I see.

MR TEHAN:  It is finally submitted that this case is a

suitable vehicle for the granting of special leave

on this matter because the effect on the jury of

the prejudicial material was very strong, and I

refer the Court, in particular, to pages 135 to 139

and page 142 of the appeal book, wherein counsel

for the applicants complains that the effect on the

jury was very strong. It could not be said that

the jury would have come to the same conclusion,

guilty of the offences that they stood charged	that is, the conclusion to find the applicants
with. The judge thought that the matter might be
solved by direction but he, in fact, did not give
any direction, and it is finally submitted that the
evidence also affected the trial of the applicant
Dunn, since he was being tried jointly with the
applicant Jones, and if, as it is contended, the evidence suggested Jones had prior criminality that must have had, it is submitted, in a joint trial,
an adverse effect on the applicant Dunn also. That
is the argument in relation to the first question
and first ground of appeal as drawn.
The second question, ground A(ii), warrants the grant of special leave because it raises for

Dunn 12/3/92

the consideration of this Court for the first time
a matter fundamental to the fair trial of an

accused. That question is whether the fact that an accused is so ill as to be unable to take an active

and intelligent part in the proceedings on many

occasions during a trial is sufficient to require

the trial judge to discharge the jury pending the

recovery of the accused.

It is submitted that the resolution of this

question is of the utmost importance to the

administration of criminal justice in this country.

From time to time the accused may become ill during

the course of a trial and, indeed, so also might

parties in civil litigation, and in the instant

case so ill that the accused is unable to properly

instruct counsel or understand the proceedings.

The matter has been left to the exercise of judicial discretion, but it is submitted the time has come for this Court to set down standards for the exercise of such a discretion.

DAWSON J: It is really not an exercise of discretion is it,

Mr Tehan? The judge assesses the situation and

considers it in a judicial manner and makes a

determination.

MR TEHAN:  And here the complaint is that the judge should

have adjourned the trial.

DAWSON J: Yes, I understand that, but there is no question

arises. If the man is unable - is unfit to plead

the trial should not go on, but the judge

determines that that was not the situation.

MR TEHAN: That is right, Your Honour, but here the

complaint is he should not have so determined.

DAWSON J:	No point of principle arises.
MR TEHAN:

The point of principle is this, Your Honour, that

whilst there are clear principles in relation to
mental disability, in so far as they affect an

accused upon his trial, there does not seem,
although I will take the Court very shortly to some

authorities on the point of physical disability,

there do not seem to be any clear guiding

principles as to how one exercises discretion in

relation to physical disability, although there are

some authorities to which I will turn, and perhaps

it is appropriate that I in fact turn to those

authorities now.	They are gathered together in
the - - -

DAWSON J:	I perhaps should not have used the term "fitness to plead" because it really is not a case of that
sort, is it?
Dunn	12/3/92
MR TEHAN:	No, it is not really a fitness to plead

situation. The tests as set down in such cases as

Reg v Presser, for example, in the Supreme Court of

Victoria, are not really applicable, in my

submission, to the factual situation here. The

factual situation here was that the accused was

simply so unwell that the trial should have been adjourned. He was physically disabled, and as a

result of that physical disability he was unable to

properly understand and take part in the

proceedings, and it is submitted that the evidence
in relation to his physical disability, in this
case, was very strong and it occupied a very large
part of the proceedings, and a stage was reached
after about the first week of the trial where

almost daily there would be some inquiry, or some

adjournment of the trial because of the applicant's

physical disability.

MASON CJ:  Now tell me, why should this Court be involved in

a question of this kind, that is, the refusal of an

application for an adjournment which was pressed on

several occasions, heard and determined on several

occasions, when the matter has been reviewed by the

Court of Criminal Appeal. We are not going to

undertake, as it were, a review of the trial

judge's exercise of discretion, in determining an

issue of this kind, unless you are able to point to

some fundamental question of principle that is at

stake in the matter.

MR TEHAN:  The fundamental question of principle is this:

what is the appropriate test for determining the

exercise of discretion to discharge a jury where an

accused is physically disabled?

MASON CJ:	Now, what do you say the principle is?
MR TEHAN:	The principle is this, that there should be two

tests: the first one should be what the New South

Wales Court of Criminal Appeal described as common

humanity, and the second test -

MASON CJ:  Common humanity does not seem like a legal test

to me.

MR TEHAN:  It was the test that was used by the trial judge

and approved, in my submission, by the Court of

Appeal in Reg v Hakim, (1989) 41 A Crim R 372, and

is the sixth case in the folder. The second test

ought to be the prejudice to the accused in

allowing the trial to proceed.	Can I take the
Court to Hakim's case.	Hakim was a case -

MASON CJ:  Now, were these two principles contended for before the Court of Criminal Appeal?

Dunn 9 12/3/92

MR TEHAN:  I do not know that the common humanity test was

specifically contended for, although it was

generally put to the Court of Criminal Appeal that

the circumstances here were so unfair and so unjust

that it was really tantamount to trial by ordeal in

permitting this trial to proceed in the way it

did.That the judge, having refused the first

application for discharge, had formed a determined

view to make sure that the trial proceeded, and

that in the face of compelling medical evidence,

one from a - - -

MASON CJ: But that seems like a different point altogether.

That seems to be a submission that, in dealing with

the later applications for adjournment, the judge

did not bring an independent objective mind to bear

on the matter. Now, that is quite removed from

common humanity prejudice to the accused, that is a

different ground of attack altogether.

MR TEHAN:  I can see how that could be said, Your Honour,

but Your Honour was asking me, as I understand

it - - -

MASON CJ: That is right I was, because I was very concerned

to avoid a situation in which this Court is asked
to rule upon a submission which has not been put to
the courts below. We have made it very clear, from
time to time, that we will not take up cases in

order to determine a point, that has not been

properly ventilated in the courts below.

MR TEHAN:  Yes, I understand that. In relation to the

common humanity point, it was certainly put to the

Court of Criminal Appeal that it was unfair upon

the accused; that it was at odds with the whole

concept of a fair trial to permit of a situation

where he was, from time to time and on a number of

occasions in any one day, complaining of being ill.

Indeed, at one stage during the course of the

proceedings, his counsel described himself, that is

his counsel, as being in the role of a nursing
aide.

MASON CJ: Role of a nursing?

MR TEHAN: Aide. I mean, it was a situation, Your Honours,

where counsel had to go to the back of the court

and see his client and then come back to the bar

table and say, "Your Honour, he is ill". It was a

case where the learned trial judge daily would say

to counsel for the applicant, "He does not look

very well today". It is submitted, and certainly all of those complaints were made in the Court of

Criminal Appeal, and in regards to the second

matter that I submit is relevant to the test, that

is the prejudice to the accused, certainly that was

Dunn 10 12/3/92

submitted as being a basis for the exercise of

discretion, and it is significant, in my

submission, that the Court of Criminal Appeal did

not have regard to either of those matters.

Now, can I take the Court to the cases and

deal with them, and I was going to deal, firstly,

with Hakim but I will return to the cases as they

appear in the books that have been handed to the

Court. The first case is Reg v Kolacz, (1950)

VLR 200. In that case the applicant was not insane but had exhibited signs of being of disturbed mind,

and had exhibited an incapacity to understand and

participate in the trial to the extent necessary to

conduct his defence, and at page 202 of the court's

judgment, at about a third of the way down, the

Chief Justice Herring states:

To these instances we think there should be

added a state of mind less than insanity
within the legal definition, where, for some

reason, the accused's mind is so disturbed

that he is incapable of understanding and

participating in the trial to the extent

necessary for his own defence.

And that seems to be a test that was developed as

long ago as 1950 in this State. One then goes to

Reg v Sykes and Campi, (1969) VR 639, and in that

case one of the applicants was ill and wished to

remain at home for a day or two whilst evidence was

being given and the learned trial judge,

Mr Justice Lush, stated at page 640, in the last

paragraph:

The present situation, however, seems to

me to be one which is quite exceptional. The

day which is now beginning will be spent in

the reading to the jury of the evidence of

statements made by Sykes.

Then His Honour goes on and he permits the trial to

proceed in the absence of Mr Campi. But it is

significant to observe that His Honour states that

the case "is quite exceptional", and Your Honours
will appreciate that, of course, in those days - I

think Sykes and Campi were charged with

misdemeanours, and it used to be the law at least

as I understand it, that where felony was charged

the accused had to be present during the course of
the trial. That distinction, in this State at

least, has since been abolished.

The next case is Reg v Jones

MASON CJ: Well, so far these cases are not enunciating any

principle - - -

Dunn 11 12/3/92

MR TEHAN:  But they are suggestive of the development of

principle, and I will ultimately turn to what I

submit the principle ought to be, and I have

indicated -

MASON CJ: Well, can you come to the cases which establish

the principle for which you are contending?

MR TEHAN:  Jones itself is not unimportant in establishing

factors that touch upon the principle. In that

case an application was made to have the trial

adjourned in order to call witnesses, and the court

decided that the application had to be genuine,

bona fide and supported by evidence. The court

also decided that the application, if unsuccessful,

would prejudice the defence and not prejudice the

Crown. Now, both of those factors are present in

the instant case. The applicant, himself, gave

evidence before the trial judge on a number of

occasions. There was medical evidence called by

two doctors. It could not be said that the

application was not genuine and bona fide; and

secondly, if the application was successful there

would be no prejudice to the Crown.	The applicant
was in custody.	The prejudice could only be to the
defence.

In Reg v Grimwade, (1990) 51 A Crim R 470,

although the case is reported upon a different

matter in the sense that it involves a certificate

under the Appeal Costs Fund Act of this State,

His Honour Mr Justice McDonald indicates at

page 472 of the judgment the reasons why he

discharged the jury in that case. At about

one-fifth of the way down His Honour says:

As appears by my reasons, in addition to

concluding that the accused Grimwade had

suffered an illness during the course of

giving his evidence which very possibly

affected his capacity to give evidence at

least during the last three days of his
cross-examination, I also concluded that to
require the accused to continue to give
evidence while in his then state of ill-health

it would be unfair and unjust to the accused

Grimwade and also to the other three accused.

So again one can see the development of a test of unfairness to the accused in him being called upon

to continue to conduct himself in the trial process

whilst he is suffering from ill-health. His Honour

went on to observe:

I further found that the recovery of the

accused Grimwade from his illness could not

occur within such period of time as would not

Dunn 12 12/3/92

affect the continuity and balance of the

trial.

That is not an insignificant observation so far as

the instant case is concerned, because there was

evidence before the trial judge that as time went

on it was expected that the applicant, Jones, would

recover from the illness that he had, and indeed, at one stage counsel for the applicant suggested that the trial be held the following year, and

His Honour indicated in clear terms that he was not

going to entertain that application.

One then comes to the New South Wales case of

Hakim, to which I have previously referred. Hakim

was a case that involved an application that the

proceedings against an accused be permanently

stayed on the basis of ill-health. The application

was successful before the trial judge, and the

director took the matter to the Court of Criminal

Appeal. At page 377 of the report, which is the

sixth page of the photocopy provided, the Court of

Criminal Appeal set out what was the conclusion of

Mr Justice Lee and state:

Certainly the line is a very fine one between

that state of affairs and the question that I

have to determine here, but I do feel

compelled in the light of the medical evidence

to take the view that to allow these charges

to stand in the light of the continuing

deterioration of Hakim, who is now 58 years of

age, would be out of accord with common

humanity when the fact is also that he has

already to some extent suffered prejudice in

regard to his memory from the passage of time

between the commission of the alleged offence

and now.

Now, it is submitted that the Court of Criminal

Appeal did not demur from that approach and, in

effect, approved of that type of test being the	appropriate test.	Then further on on the same page
the court observed:

In all of the circumstances, I am not

convinced that an error of principle has

occurred which requires the intervention of

this Court. If, as Lee J found, it would

offend common humanity to now require Mr Hakim
to stand trial on the further charge of

conspiracy, it was open to Lee J to stay the

proceedings upon that charge. It will be a

rare case that intervening illness or the

physical or mental condition of the accused

will bring a court to such a conclusion.

Dunn 13 12/3/92

Now, of course, it is different from the present

case in an obvious way. It was never contended

that the proceedings against the applicant Jones be

stayed. But it does indicate an approach and, in

my submission, a significant test that ought to be

applied, and it will be submitted ultimately, ought

to be applied in the present case.

MASON CJ:  But if you read the judgment of the Court of

Criminal Appeal, is it not clear that if they ask

themselves the question, "Was the refusal of an

adjournment an offence against common humanity?"

they would have answered that question in the

negative? The whole reasoning of the judgment

tends to a negative answer to that question.

MR TEHAN: In my submission, no, Your Honour, because on

this ground, what the court had the greatest regard
to is the fact that the trials ought to proceed,

and that there would be inconvenience to persons if

they do not proceed.

MASON CJ: But was not the court very much concerned with

the question whether or not continuation of the

trial would result in a fair trial to the

applicant?

MR TEHAN:  Yes, that was the submission that was made to the

court.

MASON CJ: Well, is that not the principal concern in

determining an application for an adjournment when

the ground of the adjournment is illness or

disability on the part of the accused?

MR TEHAN: 

It is the principal concern, and it ought to have

been the principal concern of the Court of Criminal
Appeal, and it was not. And the reasoning of the

Court of Criminal Appeal demonstrates that it was

not, because when they turned to the considerations
they do not consider the question of a fair trial.

What they consider is questions such as

inconvenience to witnesses and they take a

presumptive approach of the trial proceeding rather

than the submission that I put, and that is - - -

MASON CJ: 

Would not your energies be better directed then identifying the passages in the Court of Criminal

Appeal judgment which you say deny the proposition

that they were directing their attention to the

question of fairness of the trial.

MR TEHAN: 

At page 58 of the appeal book, the Court of

Criminal Appeal stated:

Having examined the extensive body of

material devoted to the question of Jones'

Dunn 14 12/3/92

ill-health and having considered the

submissions made with respect to it, we are

left with the clear opinion that it was open

to the judge to have found, as he did, that

there was no evidence that imperatively
required him to discharge the jury. There

were, in fact, a number of factors to which

due weight was required to be given and which

called for the continuation of the trial.

Principal among them was the public interest
in the expeditious disposal of trials and the
interest of the co-accused (who was in custody

pending the outcome of his trial) in the

speedy disposal of the proceedings.

Now, that approach, it is submitted, is

fundamentally erroneous. There is no advertence by

the Court of Criminal Appeal to the proposition

that it is at odds with the fair trial of an

accused that that trial be conducted where he is

physically disabled.

The Court of Criminal Appeal approached the matter simply by stating that it was open for the

trial judge to come to the view that he did, and it

is submitted that it is erroneous to state, as the

court did -

that there was no evidence that imperatively

required him to discharge the duty.

The fact of the matter is that on 19 September a

police doctor, Dr MacLeod was called, and the

effect of his evidence was that the applicant was

in severe pain; that his severe pain would be a

considerable distraction to him; that it would

infringe on his rights; that there were chances of

him getting better, and to use the doctor's own

words at page 944 of the transcript, it would -

be a considerable burden to his lucid

observation.

On 2 October a medical certificate was tendered to

the court which indicated that the applicant had collapsed at the gaol and had a severe headache,

and then ultimately, on 4 October a Dr Jagoda was

called, and he gave evidence that the condition

that the accused was suffering from was affecting

his ears, his neck and his shoulders; that he had

a right sided headache; that the pain was

constant, and that he was unlikely to be able to

concentrate. Now, there are many instances -

MASON CJ: That is the evidence but, of course, if you look

at the Court of Criminal Appeal judgment, they

quote from the judgment of the trial judge at

Dunn 15 12/3/92

page 57 of the application book, and it appears

from what is stated there that the trial judge took
into account the evidence that had been called up

to that stage, at any rate, and expressed himself as being of the view that the applicant would not

be prejudiced by a continuation of the trial.

MR TEHAN:  My submission is the judge was wrong in that

view, but having formed it, the error was

compounded because what the judge did thereafter

was he had determined that he would not discharge

the jury no matter what, and that it really became

a process where the accused was being forced on in

circumstances where he was clearly physically

disabled. And if there is any doubt about that,

one only has to go to the reality that the accused

himself on six occasions gave evidence on oath

before His Honour as to his condition.

On 14 September he stated to His Honour that

he had to lie down in darkness.	On 17 September he
asked to go outside.	On 18 September he said:

The problem, Your Honour, is concentration.	I
do not know what is going on.

On 24 September he said:

I can't see the point in stopping for an hour.

On 26 September - - -

MASON CJ: There is not much point in reading all this out

to us. After all, we are not in a position to

evaluate the strength of the claims made by the

applicant himself. All we can do is note that that

was evidence tendered to the trial judge and that

he took a particular view of it.

MR TEHAN:  Yes, but that view was on the 26th day of the hearing. The situation did not improve, in my

directing the Court's attention to was the comment	submission but, in fact, got worse, and what I was
by the Court of Criminal Appeal that there was no
evidence that imperatively required him to
discharge the jury. And what I was submitting to
this Court was that that was erroneous, that there
was very compelling evidence that did require -

GAUDRON J: But did the Court of Criminal Appeal mean

anything more than there was no evidence which

compelled the trial judge to the conclusion that

the accused could not get a fair trial?

MR TEHAN: That seems to be their conclusion, Your Honour.

I accept that.

Dunn 16 12/3/92

GAUDRON J:  And that is precisely what the trial judge said.

MR TEHAN: Well, if the trial judge did say that and if the

Court of Criminal Appeal said that then, in my

submission, they are wrong.

DAWSON J: But that does not make a special plea point, does

it?

MR TEHAN:	It does, Your Honour, when it is coupled with the question as to what are the appropriate guidelines
for the exercise of discretion where there is
physical disability, and it does, in my submission, if it can be demonstrated as I am attempting to, that the Court of Criminal Appeal was erroneous in
the tests that it applied, because the court go on
to say that the factors to take into account were
the continuation of the trial.  Now, in my
submission, that approach is flawed.

GAUDRON J: Well, not necessarily. For example, in a long

trial, assume the first day of the trial, very

little has happened. The man becomes ill and it is

a week before he will recover, but everyone knows

he will recover. In those circumstances you might

well discharge the jury. On the 32nd week of a

trial you may well simply adjourn for a week.

MR TEHAN: Yes, I concede that. It all depends - - -

GAUDRON J:  And certainly in a long trial the inclination

must be against discharge of the jury if there is

some other means of dealing with the problem, and

the trial judge in this case thought the problem

could be dealt with by adjournments and special

consideration.

MR TEHAN:  It was not the approach adopted by

Mr Justice McDonald in Grimwade, a trial that had

proceeded for months in the supreme court, where Grimwade had fallen ill and it was clear that he

was not going to recover quickly. That was the

case here. This man was ill and was not going to

recover quickly.

GAUDRON J: It is a matter for judgment by the trial judge

in each particular case.

MR TEHAN:	Of course, ultimately it is, Your Honour, and I am only repeating myself when I say that our
contention is he was wrong, and it is submitted the
Court of Criminal Appeal approached the matter from a wrong viewpoint when they state that the primary contention ought to be that a trial ought to go on.
And in my submission, that is not correct. If a
person is so physically disabled that he cannot
rationally and intelligently take part in the

Dunn 17 12/3/92

proceedings, then the primary guideline ought to be
that the trial should be stopped, because to

continue to conduct the trial is at odds with the

fundamental principle that every accused is

entitled to a fair trial. It is in that way that

it is submitted that the Court of Criminal Appeal

approached the matter in an erroneous way.

If there is any doubt about that, one only has

to go to the final way in which the Court of

Criminal Appeal deal with this matter, because they

state:

Principal among them was the public interest in the expeditious disposal of trials and the

interest of the co-accused.

Now, those matters are - it is not conceded that

they are not relevant, but they are not the

principal reasons, in my submission. They ought

not be the principal guidelines as to the test

where a person is physically disabled.

DAWSON J: Well, that is not being fair to the Full Court to

say that was the principal guidelines. They

referred to the matter of ill-health and said that

the judge could come to the conclusion on the
evidence that he did, and then they say there are a

number of factors, that they are additional

factors.

MR TEHAN:  Yes. Well, it is in that way - that paragraph

really summarizes the approach of the Full Court.

MASON CJ: Yes, I think you have to read the second last

sentence in that sentence as if it reads, "There

were as well, in fact, a number of factors". I

mean, they have dealt with the question of health and prejudice to the applicant, and they go on to

deal with other factors.

MR TEHAN: Well, with respect, Your Honour, that view of

what the court says, in my submission, is not open

really. The factors, they say, principal among

them was the public interest.

MASON CJ: Yes, but they are the factors they are referring

to in the previous sentence.

MR TEHAN:  Yes, but it is significant to observe,

Your Honour, that at no time does the Court of

Criminal Appeal state that the principal fact for

consideration ought to be whether or not the

applicant is having a fair trial. They never state

that a principal fact ought to be this test of

common humanity.	They never state that a
principal - - -

Dunn 18 12/3/92

MASON CJ: But Mr Tehan, you cannot really expect a court of

intermediate appeal these days to deliver judgments

that constitute perfect essays on the law.	They
are overwhelmed with work.	They seize upon the

issue as they perceive it and proceed to deal

immediately with the question in hand.

MR TEHAN: This was an important matter though, Your Honour,

and it is an important matter to the -

MASON CJ: All the matters are important.

MR TEHAN:  - - - to the administration of justice, because

it is the only, leaving aside Hakim's case, it is

probably the only decision of an appellate court in

this country upon the issue of physical disability

of an accused. There seem to be no decisions of
the Supreme Courts of Western Australia, Tasmania

or the Northern Territory on the matter. There is

a single judge case in Queensland that I referred

to in the cases - Reg v Miles, where the judge

adjourned the case because the accused was, to use

His Honour's words, "incapable of understanding the

proceedings". But there are no other - - -

MASON CJ: But the reason for the absence of appellate

decisions on the question is that it is generally

recognized that so much depends on the particular

assessment of relevant factors by the trial judge,

and that, naturally, tends to discourage appeals,
and it does not lead to judgments that are lengthy

or elaborate on the part of appellate courts.

MR TEHAN:	I appreciate that, Your Honour, that that is the case, and I concede it, that ultimately the
resolution to this matter when it arises during the
course of the trial is ultimately one of
discretion. But what is said is that the
discretion was wrongly exercised here. It was
wrongly exercised on an important matter -
MASON CJ: Well, we appreciate all that.
MR TEHAN:	- - - and the time has come for this Court to

state what ought to be the guiding principles in

relation to physical disability. There is a state

of uncertainty, in my submission, as to what the

guiding principles ought to be.

MASON CJ:  I do think you have made the points that can be

made in support of the application so far as it

relates to this point.

MR TEHAN: Yes, if Your Honours please. Could I just take

the Court very briefly to the other cases.	McColl
v Lehmann - - -

Dunn 19 12/3/92

MASON CJ:  But why do we need to go to the other cases? On

applications for special leave to appeal, we are

concerned to decide whether the case is one that

the Court should take up, and in presenting such an
application it is not necessary or desirable to
take the Court through all the cases that deal with

the particular question.

MR TEHAN: If the Court pleases. In my submission, then,

for the reasons that I have indicated, this ground

does warrant the grant of special leave, and there

is uncertainty as to what the appropriate test

should be. The Court of Criminal Appeal, in my

submission, failed to take into account

considerations relevant to the test, and if that

court's decision is left to stand, then there will

be, in my submission, a wrong decision by an

appellate court upon a matter which might seriously

interfere with the administration of justice, and

for that reason, this Court should grant special

leave on this ground.

Your Honours, could I turn to the point in

relation to sentence, and the point is a very short

one, and that is, that the sentences on both

applicants were increased in so far as count 3 on

the presentment was concerned.

MASON CJ:  Do you not run the risk that you might find the

original sentences restored if you maintain this

point? I mean, you are better off, are you not,

under the sentences imposed by the Court of

Criminal Appeal?

MR TEHAN:  I am better off in the sense that the overall

sentence - - -

MASON CJ:  The aggregate maximum term is two years less, and

the aggregate minimum term is 18 months less.

MR TEHAN:  Yes, I am better off in that sense, but worse off in relation to the charge. The foundation

offence - the sentence on that was increased, and

it is submitted that there was no appeal by the

Director of Public Prosecutions against the

inadequacy of sentence. There was no

opportunity - - -

DAWSON J:  The Court of Criminal Appeal has power to

increase sentences.

MR TEHAN:  And does not, in my submission, does not exercise the power.

DAWSON J: There is no question about the power, is there?

Dunn 20 12/3/92

MR TEHAN: No, I accept that, Your Honour. There is no

question about the power, but the fact -

DAWSON J: It has threatened to do it on a number of

occasions and produced a certain result.

MR TEHAN: Well, the fact of the matter is, Your Honour,

that since the Attorney-General and now the

Director of Public Prosecutions has had the power

by statute to appeal against the inadequacy of

sentence, the approach of the Court of Criminal

Appeal of Victoria is to not increase sentences.

GAUDRON J: But in any event, you did ask the Court of

Criminal Appeal to review all sentences.

MR TEHAN:  To reduce the sentences, not to review all the sentences.

GAUDRON J: Well, to review them with a view to reduction.

MR TEHAN:  To decrease them. We were not asking for an

increase, and that is what we got, and we were not

heard on them.

GAUDRON J:  It is only an increase when one particular

offence is taken in isolation from all the

sentences.

MR TEHAN:  It only relates to one count. I concede that,

Your Honour. But it was a count that was important because it was said that that was the foundation

offence.

GAUDRON J: But if you were to succeed on that,

automatically, the other sentences would also have

to be lifted, would they not, so that there could

be a review again? This was clearly one criminal

episode, and the sentencing principles about

criminal episodes are clear.

MR TEHAN:  The sentencing principle is very clear,

Your Honour, and that is, that the appellate court rarely, and in this State if ever, increases a

sentence where there has been no application to do

so by the Director of Public Prosecutions. Indeed,
this Court itself has recognized that the power to

increase a sentence is really redundant in view of

the fact that the Director, and in other States the

Attorney, has the right to appeal.	The authority
for that is Neil v Reg.

DAWSON J: This has an air of unreality about it, does it

not, Mr Tehan? I mean, you do run the risk in this

application that the aggregate term will be

increased for each of your clients and the minimum

term, but, in fact, what the Court of Appeal

Dunn 21 12/3/92

effectively did was to reduce the term of

imprisonment and you are now complaining about it.

It really is unreal. You do not question their

power to do it, but you say they should not have

done it.

MR TEHAN:  In the circumstances it should not have been

done, Your Honour. It was an increase of two

years, and the greater - - -

DAWSON J:  And a reduction overall of the period to which His Honour the Chief Justice referred.

MR TEHAN: But, Your Honour, the greater sentence would

still be the sentence on count 3 if it was reduced

back to what it was, and that is, a sentence of

9 years, and there does not -

DAWSON J: But you could not do that. You would have to

have a reappraisal, as	Justice Gaudron points out,
of the whole sentence.	But anyway, the point is a
short one, is it not?

MR TEHAN: Yes, and I have made it, Your Honour. If the

Court pleases.

MASON CJ:  The Court will take a short adjournment in order
to consider the course it will take in this matter.

AT 11.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.58 AM:

MASON CJ:	The Court need not trouble you, Mr Bongiorno.
MR BONGIORNO: If the Court pleases.
MASON CJ:	The challenge here is to two exercises of

discretion by the trial judge: first, the trial

judge refused to discharge the jury on account of a

remark made by a police witness concerning one

applicant, and offered to direct the jury to

disregard the comment.	This offer was declined by
counsel.	We are not persuaded that there was any

error on the part of the trial judge in exercising his discretion not to discharge the jury; nor are

we persuaded that the making of the comment led to

any miscarriage of justice.

The second ground is directed to the trial

judge's refusal of an adjournment on account of the

Dunn 22 12/3/92

applicant, Jones', illness. As to that, we are not

persuaded that the trial judge or the Court of

Criminal Appeal applied an erroneous principle in
dealing with the question. In matters of
adjournment, a Court of Appeal must necessarily

place great weight on the trial judge's assessment

of the matters to be taken into account.

The final ground goes to the matter of

sentence.	The course taken by the Court of
Criminal Appeal was within power.	The only
question is as to the exercise of that power.	As

the effect of the Court of Criminal Appeal's

decision was to reduce the aggregate maximum term

by two years and the aggregate minimum term by
18 months, the challenge to the exercise of power

must fail.

The application for special leave to appeal is

therefore refused.

AT 12 NOON THE MATTER WAS ADJOURNED SINE DIE

Dunn 23 12/3/92