Flavell v The Queen

[1991] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P7 of 1991

B e t w e e n -

GARY ROBERT FLAVELL

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J MCHUGH J

TRANSCRIPT OF PROCEEDINGS

Flavell 1 22/10/91

AT PERTH ON TUESDAY, 22 OCTOBER 1991, AT 10.18 AM

Copyright in the High Court of Australia

MR P.W. NICHOLS: If Your Honour pleases, with my learned

friend, MR T.F. PERCY, I appear for the applicant in

this matter. (instructed by Jon Davies & Co)

MR R.J. DAVIES, QC: If the Court pleases, with

MR J.A. SCHOLZ, I represent the Crown in this

matter. (instructed by the Director of Public

Prosecutions)

MASON CJ: Yes, Mr Davies.	Mr Nichols.
MR NICHOLS:	If Your Honour pleases, the point that would

justify, it is submitted, special leave is a short

one. At the trial, all the judges found there was

a significant procedural error on the part of the

trial judge in failing to allow counsel for the

applicant to ask a further question or questions

following the prosecution having raised in the

re-examination a matter not previously touched on.

It is said, therefore, that by invoking the proviso

the Court of Criminal Appeal erred in that a

procedural error having been raised, which would

have had a significant effect upon the trial, the

proviso could not be applied in the ordinary way.

The special leave point in particular it is

sought to adduce is that the operation of the

proviso under the Criminal Code is important to

three or four jurisdictions, depending on the view

one takes of the Northern Territory, and

Your Honours have pronounced several times upon

that subject and given guidance to the Code States

in that respect.

The particular point in relation to the proviso is referred to in Wilde v The Queen, and I

would like to quote a short passage from that

authority, the decision of Mr Justice Brennan,

Mr Justice Dawson and Your Honour,
Mr Justice Toohey, at page 372, beginning near the

top of the page:

Unless it can be said that, had there been no

blemish in the trial, an appropriately
instructed jury, acting reasonably on the

evidence properly before them and applying the

correct onus and standard of proof, would

inevitably have convicted the accused, the
conviction must be set aside.

Several other authorities are mentioned.

Unless that can be said, the accused may have

lost a fair chance of acquittal by the failure

to afford him the trial to which he was

entitled, that is to say, a trial in which the

Flavell 2 22/10/91

relevant law was correctly explained to the

jury -

and I emphasize -

and the rules of procedure and evidence were

strictly followed.

The importance of this is explained by

Your Honour Mr Justice Toohey in the case of

S. v The Queen (1989) 64 ALJR 126, at page 131.

Your Honour, explaining the particular words I wish

to rely on, said:

At all events, where there is real ambiguity

and the point is taken, as it was in this case,

failure to correct the ambiguity means that the

accused has not had a proper trial aqd there

is, for that reason, a substantial miscarriage
of justice which precludes the application of

the proviso contained ins 689 of the Code.

And Your Honour goes on, and I emphasize this:

It is therefore unnecessary to consider

whether, had the applicant been properly

tried, he would inevitably have been

convicted. He was entitled to a fair trial,

and his conviction proceedings, which were

fundamentally flawed, cannot be sustained.

That is the point that it is sought to advance

to Your Honours in this respect. Of the Court of

Criminal Appeal, one judge applied that principle,

Mr Justice Rowland. The other two judges applied

the proviso. That, in short, is the point that it

is sought to advance.

Looking at the case itself, one can see why

His Honour, Mr Justice Rowland, did not apply the

proviso. If I may refer to His Honour's reasons

quite briefly at page 65 of the application book: As I have indicated, the appellant was

denied the opportunity of cross-examining

Peake as to his reasons for pleading guilty.

Those reasons may have had an impact on the

assessment the jury made of Peake's credit and

his evidence and, in turn, that may have made

an impact on the jury's assessment of both the

evidence of Dougan and the appellant.

I would submit that none of the other judges

differed in any respect from that view. The way in

which they differed was none the less apply the

proviso. I therefore would think it is probably

unnecessary at this stage, unless Your Honours have

Flavell 22/10/91

some particular point to raise in respect of the

evidence, to go further into it. If that view be

taken, then the applicant says, "My trial was

flawed; my trial fell into error. If what

Your Honours have said in the past is to be

accepted, then it does not matter that on a

reasonable view of the evidence a jury might have

convicted. I have been denied, as Your Honour,

Mr Justice Toohey said, the opportunity of a fair trial, and I therefore submit to the Court" - that

is what he would say - "that the proviso is

inappropriately used in circumstances where there

has been a major procedural error."

That is the substance of this application, if

the Court pleases, and I do not propose to take it

a great deal further. I do not think there is any

need, unless Your Honours rate it, to go into any

depth in the evidence.

MASON CJ: Mr Nicholls, do you say that the majority erred

in principle? Can you point to a passage in either

of the judgments that indicates that Their Honours

approached the matter according to an incorrect

statement of principle?

MR NICHOLS:	If Your Honour will bear with me a moment, if I may start with the reasons of the Chief Justice.
This is where the problem, in my submission,
begins, at page 31, where His Honour said:

In my opinion, the verdict of the jury

indicates that they positively rejected the

appellant's evidence.

And then he goes on to explain why that was his

view. He erred in looking, in my respectful

submission, to the evidence and applying the

proviso on that basis instead of looking at the

procedural error. He examined the procedural error

on page 34 and on page 35, where he said:

In my opinion, looking at the evidence as a

whole, had there been no blemish on the trial

and Peake had given the explanation

anticipated, an appropriately instructed jury,

asking -

I think His Honour meant "acting" -

reasonably and applying the correct standard

and onus of proof, inevitably would have

convicted the appellant.

The problem here is that His Honour, in my

respectful submission, has skated over the point

Your Honour Mr Justice Toohey made, and simply

Flavell 22/10/91

failed to take the distinction between a procedural

error that goes to the root of the trial, and the

operation of the proviso. I submit that the

principle is that the proviso should operate - and

of course it must, in order to prevent casual or

minor points being taken on appeal - where all the

other requirements of a fair trial exist; that is

to say, a proper instruction to the jury and, in

particular, the proper admission of evidence.

The question that I submit the Full Court of the Court of Criminal Appeal had before it was to

apply what this Court has said, and two of the

judges, with respect, did not. As to the reasons

of the next judge, if I may turn those up,

Mr Justice Pidgeon found, at page 40, that there

was a substantial procedure, and I need not go, I

think, at any length into why he did that, and his

reasons for doing so. They are clearly

substantially those of Mr Justice Rowland and the

Chief Justice. The point at issue that I would

take with His Honour is how he then applied that

finding.

I cannot isolate a pithy passage which would

show, in the same way that the Chief Justice did, that His Honour Mr Justice Pidgeon simply went on

and set aside the principle. It is clear that

His Honour never actually adverted to the point

that I would submit is central to this application.

The nearest he came to it is at page 44, where
His Honour goes into the evidence and then

considers why the jury would inevitably have convicted. Once he does that, without first

considering the major issue, and I submit that he

has fallen into error, that is the nearest that I

can isolate it, Your Honour.

MASON CJ:  Thank you, Mr Nichols. Mr Davies. I take it

you have finished, Mr Nichols? I hope I did not,

as it were, prematurely call on Mr Davies, but I

understood that you had finished your submission.

MR NICHOLS:  Your Honour is correct.

MASON CJ: Yes, Mr Davies.

MR DAVIES:  If the Court please, in our submission, the

judgments in the majority leave no room for any

suggestion that Their Honours were not aware of the appropriate test. The appropriate test is the test

laid down by this Court specifically in Wilde,

which was directed to cases where there has been an

error of law as distinct from the more traditional

factual errors of the earlier cases. His Honour,
the learned Chief Justice, specifically referred to

the passage that has been referred to by my learned

Flavell 22/10/91

friend, and specifically found that the jury would

inevitably have convicted. There is nothing to

suggest in the judgment of Mr Justice Pidgeon that

he was under any misapprehension as to what was the

appropriate test to apply when he said that there

had, in his view, been no miscarriage of justice.

Both of the judgments took on the task as,

with respect, this Court has said they must, and

made it clear that they were taking it on because

this Court has said that they must, of carefully

assessing all of the evidence for themselves, and then came to that conclusion. In our submission,

it is impossible to demonstrate they were in error.

MASON CJ:  Thank you, Mr Davies. Do you wish to say

anything in reply, Mr Nichols?

MR NICHOLS:	Only one very, very, brief point, Your Honour, and I am obliged for the opportunity. The sticking
point with my learned friend's submission really
comes back to page 131 of S v The Queen, and I must
emphasize Your Honour Mr Justice Toohey's words.
Your Honour said:

It is, therefore, unnecessary to consider

whether, had the applicant been properly

tried, he would inevitably have been

convicted.

Those words throw out my learned friend's

submission. Your Honour went on:

He was entitled to a fair trial and his

conviction in proceedings which were

fundamentally flawed cannot be sustained.

And Your Honour applied Wilde v The Queen,

particularly at page 372, and I suspect that that

is the passage from which I quoted.

TOOHEY J: But Mr Nichols, it is one thing to say that a

trial has been fatally flawed, and therefore it is

not appropriate to consider whether or not the

accused might have been convicted in any event.	It
is another thing to say that there has been some

error in the course of the trial, as it is accepted

that there was here, and then to argue that it is

not appropriate to apply the proviso, because the

proviso is there to meet that sort of situation.

MR NICHOLS:  So what Your Honour is really saying is there

are errors and errors, and that you have to look at

the quality of the error to see whether it goes so

far, as it apparently went in S v The Queen's case.

Flavell 6 22/10/91

TOOHEY J:  I think the term "fatally flawed" gives an

indication of the sort of error that is likely to

lead to a non-application of the proviso.

MR NICHOLS: Well, I would submit in this case that the

finding of His Honour Mr Justice Rowland perhaps

indicates the direction that I would seek to

dissuade the Court. It is really a question of
quality in the end, as all these things must be,

but a matter for receipt of evidence that could

have gone to affect the evidence of Miss Dougan,

who was an important Crown witness, must

inevitably, in my respectful submission, take us

within the boundary Your Honour has drawn.

If Your Honours disagree with me on that, of

course I cannot take the point much further, but I

would submit that it has gone over that boundary in

this case. I have nothing more to add to that.

May it please the Court.

MASON CJ:  Thank you, Mr Nichols. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 10.33 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.40 AM:

MASON CJ:  Mr Davies, there is one question that has arisen,

and I will ask Mr Justice McHugh to put it to you.

McHUGH J:  Mr Davies, what troubles me about this case is

whether or not you are really in the relevant area

of the discourse in the sense that this trial was

fundamentally flawed, almost as though something as

fundamental as the Crown being allowed to reopen

its case after the accused is giving his evidence,

or something of that nature. This is a question

that should never have been asked at all without an

application to declare the accused hostile. What

the result may have been you do not know, but I

have the feeling that there is something terribly

unsatisfactory about a trial that has taken place

and a conviction secured, as this conviction has

been.

MR DAVIES: With respect, what Your Honour puts to me is no

more than putting, in my submission, in a specific
way, specific to this case, the proposition that

some inadmissible evidence may have been admitted.

Flavell 22/10/91

If that is so, then it is inevitable that the

proviso is available to be applied in the

circumstances set out in Wilde. Your Honour is

simply honing in, with respect, on the mechanics of

the way that came about, that we could be dealing

with a case that was led without objection in the

evidence in-chief, and indeed often is, if

Your Honour please, in trials where one calls an

accomplice, often is, almost to put the jury into

the picture as to how he comes to be there and not

on the indictment.

If that were so, the result would be no

different, in our submission. The Court of Appeal

would be called upon to decide if it were of the

view that the evidence should not have been

admitted and coupled with that, in this case, is

the declining of the trial judge to allow further

cross-examination, which is what has been taken as

the ground of appeal. The way Your Honour puts it,

it is only a case of evidence adjudged by the

Appeal Court to be inadmissible having been

admitted and, in my submission, to take that to the

stage of saying that the trial was fundamentally

flawed - the description of Mr Justice Toohey in S,

a case where there was no evidence to match the

indictment, full stop - is taking it too far, with

respect, Your Honours.

McHUGH J: Well, take a case where the Crown is allowed to

reopen.	What do you say? - "Oh well, it makes no
difference.	The Crown could have led this evidence

in-chief. The trial judge has wrongly allowed them to reopen during the course of the accused's case".

What do you do in such a case? Do you just simply

say, "Oh, we will just apply the proviso"?

MR DAVIES:  No, with respect, Your Honour, what you do not

do is to say that the proviso is not available.

Wilde specifically - with respect, the judgments in

Wilde - all of the judgments, not just the one

referred to here but the judgments of

Mr Justice Deane and Justice Gaudron, putting it in

their own way - clearly say that there are

circumstances, even where there has been a

fundamental error of law in the trial, where the

proviso can be applied. They set out therein the

basis upon which it can be applied, and the Court

of Criminal Appeal, in this case, has applied those
observations to its assessment of the facts.

With respect, Your Honour, what you put to me would really be to do an injustice to the judgment

of this Court, which is the binding judgment, and

which, on any view, covers this situation, whether

it be procedural error, wrongful admission of

evidence, wrongful exclusion of evidence, whatever.

Flavell 22/10/91

And Sis an extreme case which is very, very

different, with respect. We would simply answer

Your Honour directly by saying that it is drawing a

long bow to apply the expression "fundamentally

flawed" to this trial. If the Court pleases.

MASON CJ:  Mr Nichols, do you want to say anything about

that question?

MR NICHOLS:  No, I think Your Honours put the matter very

fairly in the course of the comments of my learned

friend.

MASON CJ:  The Court is not persuaded that there was any

error of principle on the part of the majority in

the Court of Criminal Appeal in applying the

proviso. The application for special leave to

appeal is therefore refused.

AT 10.45 AM THE MATTER WAS ADJOURNED SINE DIE

Flavell 22/10/91