Dupas v The Queen

[2010] HCATrans 30

[2010] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne     No M92 of 2009

B e t w e e n -

PETER NORRIS DUPAS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 2010, AT 2.46 PM

Copyright in the High Court of Australia

MR C.B. BOYCE:   If the Court pleases, I appear on behalf of the applicant with my learned friend, MR L.C. CARTER.  (instructed by Victoria Legal Aid (Criminal Law Section)

MR J.D. McARDLE, QC:   I appear on behalf of the respondent with my learned friend, MR B.L. SONNET, if the Court pleases.  (instructed by Director of Public Prosecutions (Vic))

FRENCH CJ:   Mr McArdle, it might assist us to hear from you first.

MR McARDLE:   Very well, your Honours.  Your Honours, it is submitted that the arguments advanced on behalf of this application are such as not to expose a special leave point.  All three judges in the Court of Appeal approached the question – I should say that the submissions I am presently advancing relate to the stay.

FRENCH CJ:   Yes.

MR McARDLE:   All three judges approached the material with the same legal principles in mind.  There was no controversy in relation to those.  They were, was there a miscarriage of justice because of irreversible prejudice occasioned by adverse publicity, irreversible insofar as it is not amenable to direction, adjournment or any of the other strategies available to a trial judge. 

Now, what happened, your Honours, was that Justice Ashley took the view that this was such a case, that is to say, that it could not be remedied by direction.  Justice Weinberg thought otherwise.  Justice Nettle sided or agreed with Justice Ashley’s assessment of the situation but declined to make an order staying the retrial of the case.  It was an appeal that was going to lead to a retrial for reasons unconnected with the application for a stay.  So what we would say then is left is a question of an assessment of the facts, whether they fitted within the test about which there was no controversy.  That being the situation, it is submitted there being no matter of principle exposed, it is not a suitable matter for a grant of special leave.

Now, your Honours, the other aspect of this case is that the order proposed by Justice Ashley was that there be a stay, that it was a stay pending a determination of a future trial judge.  We are not at all sure where the power came from for such a proposed order.  In fact, no such order was made because on this issue his Honour was in the minority.  The question of whether or not the Court of Appeal should have stayed these proceedings was not, as we recollect it, part of the argument before the court.  We would say, in any event, whatever be said, that the issue of whether there be a stay of proceedings is something that is best, or was best, or will be best, left for the trial judge on the retrial and subject to orders of this Court, there will be a retrial on issues unconnected with the present application, that is to say, deficiencies in the identification direction and I think some other matters as well.

KIEFEL J:   Where does that leave ground 2.2 then?

MR McARDLE:   That is the unsafe and unsatisfactory?

KIEFEL J:   Yes.

MR McARDLE:   Well, we say, your Honours, that seems to be based upon an observation made by Justice Nettle, I think, as to the evidence of the witness, Fraser, who received an admission in prison from the applicant as to his involvement in the murder in question.  We say, as his Honour said, that it was open for any future jury to conclude that the applicant was guilty of this murder.  His Honour Justice Nettle expressed some reservations as to the credibility of Fraser, as did Justice Ashley in an entirely different context when he was narrating the events as part of his judgment.  In any event, notwithstanding those reservations, your Honours, his Honour Justice Nettle, at least was joined by the other judges, was of the view that a conviction was available on the evidence; putting it another way, the jury was not bound to acquit.

FRENCH CJ:   Well, if the matter went back for a retrial, that would all be opened up again in a sense?  I mean, the question of the evidence and the utility of the evidence would be.

MR McARDLE:   Yes.  I do not hold the brief to do the retrial, but I imagine the evidence would be led pretty much the way it was.  It consisted of admissions by the applicant as related to Fraser, what was said to be a false denial in relation to whether he had ever been to the cemetery and some identification witnesses.  So we would say that there was no misunderstanding of the testimony and which is central to these cases and that the jury was not bound to acquit.

Your Honours, we anticipate, quite frankly, that the major point that our learned friends rely upon really is the question of stay.  What they are putting, I suppose, if I could put it this way, that again it is beyond doubt, according to the uncontroversial principles in relation to this thing, that such a stay is as a matter of policy a very – at least save for the most exceptional case, we would say this is not that and the criticism that has been directed to the Court of Appeal is that they have chosen apparently not to make legal history.  If the Court pleases.

FRENCH CJ:   Thank you.  Mr Boyce.

MR BOYCE:   Your Honours, the special leave question identified in respect of the stay is a point of principle, in our submission, and an important point of principle that applies to the administration of criminal justice.  That question is identified as follows.  Whether a trial court can grant a stay in cases where the intensity of pre‑trial publicity relating to an accused is such that no matter what steps are taken within the bounds of ordinary procedural constraints of trial, conviction is likely to be substantially affected by prejudice and prejudgment.

That question, as the judgments in the present case show, in our respectful submission, deals with two competing values.  On the one hand, the right of an accused to a fair trial intersecting with the social imperative that those who are charged with criminal offences have a trial that is brought to fruition and this case raises directly the intersection between those two principles, it is submitted with respect, namely, is there a case, can there be a case, an exceptional or singular case, wherein prejudicial media publicity is of such intensity that the social imperative must give way to the right to a fair trial?

FRENCH CJ:   It was put against you that this is a matter which can be revisited by the trial judge on the retrial.

MR BOYCE:   That is the argument.

FRENCH CJ:   And there has been a passage of time, of course.

MR BOYCE:   Well, the first thing is as follows.  We rely upon the findings by Justice Nettle and Justice Ashley that in this case it is an extreme or singular case.  I am reading directly from Justice Nettle’s judgment.

FRENCH CJ:   What page?

MR BOYCE:   At paragraph 61 of the judgment, page 22 of the judgment.  I apologise, your Honour, we had to send up fresh copies of the judgment with paragraphs properly paragraphed.

FRENCH CJ:   Yes.

MR BOYCE:   It is at page 22.  Do your Honours have that?

FRENCH CJ:   Yes.

MR BOYCE:   It is page 22, paragraph 61.  His Honour:

I agree with Ashley JA, for the reasons his Honour gives, that this is an extreme or singular case in the sense that, despite lapse of time, and no matter how careful and thorough may be the directions given to the jury, there was and for the foreseeable future there will remain a significant likelihood that any conviction of the applicant for the murder of Ms Halvagis would be affected by substantial prejudice and pre‑judgment.  That being so, I agree with Ashley JA that the balance of persuasion in R v Glennon implies that the trial should have been stayed indefinitely.

The difficulty with that, however, is that the risk of prejudice and pre‑judgment has been brought about by media publicity.  Consequently, to grant an indefinite stay would be to recognise that the media has the capacity to render an accused unable to be tried.  I do not consider that we should recognise that the media has that capacity.  With respect, I adopt the view expressed by Brennan J in Glennon, with which Dawson J agreed, that the community cannot afford to acknowledge that the media has the capacity so to render an accused unable to be tried.

Just stopping there, if I may, your Honours.  That, of course, is an adoption by his Honour of what might be termed the minority opinion in Glennon, that is ‑ ‑ ‑

KIEFEL J:   Which is, I suppose, not to be underestimated; three justices were in dissent.

MR BOYCE:   Sorry, when I say “minority” on the point of principle, the court below, in particular Justice Ashley and Justice Nettle, identified an obiter balance of persuasion.  All Justices, bar Justices Brennan and Dawson, who would allow for at least the power ‑ ‑ ‑

KIEFEL J:   An extreme case.

MR BOYCE:   An extreme case.  His Honour Justice Nettle, as we perceive it, because it was a balance of persuasion, able to step back from that and adopt the opinion of the minority on the point of principle.  His Honour continues:

The result of that is to some degree unsatisfactory in that it leaves the applicant exposed to the unfairness of prejudice and pre‑judgment.  But the social imperative that an accused be brought to trial surmounts that consideration.  And the consequent unfairness of that for the applicant is to be rationalised, as Brennan J reasoned in Glennon it should be, upon the basis that unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness.  The court must do all that it can to guard against the prejudicial effects of pre‑trial publicity.  But provided the trial is conducted with all the safeguards the law can provide, ‘it is a trial according to law and there is no miscarriage of justice in a conviction after such a trial’.

So to answer your Honour the learned Chief Justice’s question, if we are unsuccessful in our application for special leave on the point of principle – which we submit this case is a perfect vehicle for because of that finding by Justice Nettle shared by the finding by Justice Ashley that this is the extreme case – if we fail and the case goes back to the trial judge, faced with this authority in the court below, one would have thought that the trial judge would be bound, notwithstanding the findings of fact made by Justice Nettle and Justice Ashley as to doubt at least or to find that there is no power to order a stay in this case – and that is why the applicant is in this Court now, to argue the point of principle – faced with this, we point to points, the authorities in our submissions ‑ ‑ ‑

FRENCH CJ:   Yes.  Now, can I ask you then in relation to ground 2, is there any special leave point in that?

MR BOYCE:   Well, your Honour, I need to be clear about this.  It is an unsafe ground.  It is a point that relates solely to the application of settled principle, we submit.  We are not seeking to dislodge findings made with respect to the particular witness’ case made by the court below.  In fact, we rely upon them to the extent that they evince doubt.  The simple point is ‑ ‑ ‑

KIEFEL J:   If leave were granted and you were unsuccessful on an appeal in relation to the stay, you would nevertheless have your retrial, would you not, under the orders made by the Court of Appeal?

MR BOYCE:   Yes, that is so.

KIEFEL J:   So there would be no necessity for this Court to look into the unsafe question?

MR BOYCE:   Unless your Honours thought that there was a special leave point in it.

FRENCH CJ:   Well, you see, if you failed on the first point and you succeeded on the second, you might still end up with a retrial.

MR BOYCE:   I would have thought if we succeeded on the second we would be acquitted.

FRENCH CJ:   Well, all right.

MR BOYCE:   If by the second point your Honour means the unsafe point?

FRENCH CJ:   Yes.

MR BOYCE:   Yes.

FRENCH CJ:   All right.

MR BOYCE:   I do not want to dwell upon it, your Honours, but the simple point on that is, we submit that the court expressed doubt about the veracity of the evidence that it ruled was necessary to accept before there could be conviction and our simple point is that the court was in as good position as the jury.  We know that Justice Ashley watched a videotape of the evidence and we know that Justice Nettle made reference to the manner in which the evidence was given and M says pretty clearly if the doubt expressed by Court of Appeal is not the sort of doubt that may be assuaged by the benefits that a jury has, then the verdict is unsafe.  We simply draw attention to whether the court itself was in a position to have those doubts assuaged.  We concede openly, your Honours, the point is we do not seek to overturn M, we do not seek to overturn the findings of fact, made below ‑ ‑ ‑

FRENCH CJ:   Well, it is a visitation point.

MR BOYCE:   It is application of settled principle.

FRENCH CJ:   Yes, all right.

MR BOYCE:   The first point we do submit is a point of principle, the resolution of which is material to the applicant’s prospects because of the findings made by their Honours Justice Nettle and Justice Ashley.

FRENCH CJ:   Yes, thank you, Mr Boyce.  There will be a grant of special leave on the first ground.  We will be anxious to see that this was heard in the April sittings of the Court.  We will not be more than a day for this, I would think, Mr Boyce?

MR BOYCE:   No, we agree with that.

FRENCH CJ:   Mr McArdle, do you agree with that?

MR McARDLE:   We agree with that, your Honour, yes.

FRENCH CJ:   Yes, all right.  There will be a grant of special leave.  Thank you.

AT 3.06 PM THE MATTER WAS CONCLUDED