Ferris v State of Western Australia

[2008] HCATrans 377

[2008] HCATrans 377

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P17 of 2007

B e t w e e n -

LAWRENCE PETER FERRIS

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

BY VIDEO LINK FROM ADELAIDE TO PERTH

ON THURSDAY, 13 NOVEMBER 2008, AT 12.11 PM

Copyright in the High Court of Australia

MR L.P. FERRIS appeared in person.

MR R.E. COCK, QC:   If your Honours please, I represent the respondent.  (instructed by Director of Public Prosecutions (WA))

FRENCH CJ:   Yes, Mr Ferris.

MR FERRIS:   My argument is set out at page 225 of the application book.  Essentially, however, the grounds of appeal for which I seek special leave arise from the judgment of Justice Roberts‑Smith.  The grounds of appeal that were upheld by Justice Roberts‑Smith are the only grounds from the Court of Appeal that have been included in this appeal.  Justice Roberts‑Smith was the dissenting judge.  The other two judges rejected the appeal.  I rely upon the reasoning process set out by Justice Roberts‑Smith, which is found in the application book at pages 166 to 217.  Would it assist if I point out the specific pages upon which his Honour deals with each ground of appeal that is currently before the Court?

FRENCH CJ:   Yes, thank you, Mr Ferris.

MR FERRIS: Grounds 1 and 2, the inconsistent verdicts. The stealing counts on the indictment related to all of the funds received by Elk Cove for the investors via Blackburne & Dixon other than the $20,000 payment to Annette Lawrence & Associates and some other minor expenses. The offence of stealing is created by section 371 of the Criminal Code which provides that:

(1)A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.

(2)A person –

is said –

to do so fraudulently if he does so with . . . 

(a)An intent to permanently deprive the owner of the thing or property of it or any part of it . . . 

(f)In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.

The State here relied on section 73 of the Code which relevantly ‑ ‑ ‑

FRENCH CJ:   Mr Ferris, it is not necessary for you to read the section.  I thought you were just go to take us to particular parts of his Honour’s judgment where he dealt with matters you want to raise on your appeal.

MR FERRIS:   I am sorry.  That is all I wanted to do – just bring you to the grounds 1 and 2 of the inconsistent verdicts there.

FRENCH CJ:   Yes.

MR FERRIS:   Then ground 3 on page 194.  He refers to that verdict as being unsafe and unsatisfactory, in that:

The second particular is that the trial Judge erred in directing the jury, in effect, that the evidence given by a co‑accused that was favourable to the appellant, should be looked at “critically” and always in light of the fact that “they are accused persons together”.

I understood that, as there were three of us and I was the only one found guilty.  Ground 4, which is on page 213, is that:

the 10 verdicts of guilty on counts 15 and 17 to 25 (stealing by direction) are unsafe and unsatisfactory, unreasonable and have occasioned a miscarriage of justice . . . 

Particular 6.2 is that the trial Judge failed to adequately address the jury as to the elements of the offence of stealing by direction, failed to instruct the jury on the real issues and failed to draw their attention to the relevant evidence in respect of each issue.

Then, of course, that was end of the grounds.  Then there was a summary on page 217 of Justice Roberts‑Smith:

Having concluded grounds 1, 2, 5.2, 6.2 and 6.4 must be upheld, I would grant leave to appeal on those grounds, allow the appeal and quash the convictions on counts 1 to 13 including 15 and 17 to 25 inclusive.  I would refuse leave to appeal on the remaining grounds.  If there were a retrial, any guilty verdicts would still necessarily be inconsistent with the appellant’s acquittal on count 14.  That being so, there should be no order for a retrial.

They were the points that I would just like to bring you to.  That is about all I have to say – is that I rely on my application on Justice Roberts‑Smith’s reasoning in his direction to uphold my appeal to the State court.  In relation

to the DPP, in their submissions at page 228 – I do not intend to go into it because I am not a solicitor, but responding to their page 228, all I can say there is that, as I have spoken and taken legal advice from the odd solicitor in Perth, they are of the – the situation of the argument that not only the conclusions of Justice Roberts‑Smith reached was correct, but also that his legal reasoning process was correct in what the case is all about.

I cannot do much more than that.  I know the case inside out.  I have read everything I can read and understand in my mind.  Justice Roberts‑Smith, in my opinion, did understand the whole case and I felt very pleased to see not only from the upheld point of view but he did understand the case.  It was a long trial; it was over 10 weeks; there were lots of things that changed and following the trial was not easy for anyone, especially the jury.  Therefore I have to leave my appeal based on his case, which I believe should be strong enough to make my appeal successful.  Thank you.

FRENCH CJ:   Thank you, Mr Ferris.  We will not need to call on you, Mr Cock.

The Court is of the view that the applicant’s submissions do not raise any question of principle which would warrant the grant of special leave.  The decision of the majority of the Court of Appeal involves the application of settled principles to the particular facts of the case. 

The reasons of the majority do not raise sufficient doubt about the correctness of their decision to justify the grant of special leave.  Special leave will be refused.

The Court will adjourn to reconstitute.

AT 12.20 PM THE MATTER WAS CONCLUDED