Fox v The Queen

[2000] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  Nos B25 of 1998 and B58 of 1999

B e t w e e n -

WILLIAM KELVIN FOX

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2000, AT 11.03 AM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC:   May it please the Court, I appear with my learned friend, MR P.J. CALLAGHAN, in B58. (instructed by Gishenan and Luton Lawyers)

MR A.J. RAFTER:   May it please the Court, I appear for the applicant in application No. B25 of 1998 so far as the Dietrich point is concerned in respect of that particular application.  Otherwise, the applicant, if the Dietrich point is rejected, relies upon the written submissions that are contained in the application book. (instructed by Gishenan and Luton Lawyers)

MR D.L. MEREDITH:   I appear for the respondent, your Honours.  (instructed by the Director of Public Prosecutions (Qld))

GLEESON CJ:   Is it a convenient course for us to deal with both of these matters together in the sense that we hear what Mr Glynn has to say, then we hear what Mr Rafter has to say before we hear what the Crown has to say in either of them.

MR RAFTER:   That seems satisfactory to me, your Honour.

GLEESON CJ:   Very well.  Yes, Mr Glynn.

MR GLYNN:   Your Honours, this application is based on the proposition solely that the interest of the administration of justice in the particular case call for the grant of special leave.  The issue is whether it was appropriate to apply the proviso in this appeal in the Court of Appeal, the court having found that there was a serious flaw in the conduct of the trial.  There was a clear finding by the Court of Appeal that highly prejudicial evidence of a propensity to kill, or that would lead to a conclusion of a propensity to kill or arrange to have people killed, was left to the jury without a direction to the jury about the use to which it might properly be put which was, namely, to damage the credit of the witness who made the statement, and as to the use to which it could not be put, and that was to show a propensity to kill or have people with whom he was displeased killed.  Not only was there no direction, but in fact the evidence was highlighted in the summing up and fell under a general category described by his Honour as important evidence in the trial.  The finding by the Court of Appeal about the highly prejudicial nature of the case of the evidence and the failure to give a direction is not disputed by the respondent.

Your Honours, if I could go to the decision of this Court in BRS which is on our list as the third matter referred to.

GLEESON CJ:   Yes.

MR GLYNN:   In that decision at page 301, Justice Gaudron said this, in the third complete paragraph on the page:

It is well settled that where evidence is admissible for one purpose but is inadmissible for another, the trial judge “should direct the jury that they must not use the evidence for the purpose for which it is inadmissible…..[if] the use of the evidence for that purpose would be adverse to the accused.”  Certainly, a direction of that kind must be given whenever necessary to avoid a perceptible risk of injustice.

That, in our submission, is a clear statement of the law on the point and it is our submission that it is the only proper approach in such a situation.  In this case the evidence came out unexpectedly, it was nobody’s fault, it was an unresponsive statement to a question asked in cross‑examination.  In the same decision, that is BRS, Justice McHugh, at page 303, in the opening paragraph of his judgment said:

The question in the appeal is whether the appellant’s convictions constituted a miscarriage of justice by reason of the omission of the trial judge to direct the jury on certain matters even if that omission gave the appellant a better chance of acquittal than if the judge had directed the jury according to law.  In my opinion, there was a miscarriage of justice because the jury may have convicted the accused by a reasoning process that a proper direction would have denied to them.  It follows that the appeal should be allowed and a new trial ordered.

In fact, that summarises, really, the position for the applicant in this particular case.  The fact that the evidence was useful for an aspect of the defence case, namely to attack the credit of the Crown witness who made the statement, in no sense dissipates the need for a careful and strong warning from the trial judge as to the uses to which such evidence may not be put.

The respondent submits in its outline at paragraph 11 that the failure to give a warning was not a fundamental error.  It is our submission that, in fact, such a failure to direct the jury on the proper and improper uses of highly prejudicial evidence is fundamental to a fair trial as it may, as his Honour Justice McHugh said, lead to convictions by an improper reasoning process.

In the same decision, that is BRS v The Queen, your Honour Justice Kirby gave extensive reasons, and in particular at page 326 your Honour set out four reasons or four conclusions as to how someone may lose a chance of acquittal by the failure to properly direct in respect of evidence of this type.  Your Honour said:

First, it is not at all uncommon for judges, particularly in criminal trials, to be required to explain to juries the differing uses to which evidence, once admitted, may be put and to which such evidence may not be put.  Secondly, this case was complicated by an explicit suggestion for the Crown that that the jury could use the evidence of W to establish the “predilection” of the appellant, ie his propensity to commit the offences charged.

If I could interpose at this stage, the evidence in question here was expressly part of a series of passages of evidence which were described by the trial judge as being important evidence in the trial.  The third was that:

the great risks of the misuse of W’s evidence as evidence of propensity required the provision of a firm judicial warning…..Fourthly, the judicial obligation…..was not discharged.

GLEESON CJ:   Mr Glynn, I suppose that when it comes to the application of a proviso in a particular case, the prejudicial effect of evidence, particular propensity evidence, has to be considered in a context, the context of other evidence.  How does that apply here?

MR GLYNN:   If I understand what your Honour is saying, was it a strong case ‑ ‑ ‑

GLEESON CJ:   No, I was really asking whether the information that your client had a certain propensity would have come as news to the jury.

MR GLYNN:   To the extent, in my submission, it would, because it suggested not only did he, on the Crown case, shoot this particular woman, but he was a man of a type who would ask someone else to shoot another woman who was also connected to him, but, nonetheless, he would go to the extent of inviting someone else to shoot her.  In my submission, that would come as somewhat of shock to a jury.

GLEESON CJ:   I was raising a slightly different question.

MR GLYNN:   Sorry.

GLEESON CJ:   That is, apart from this particular piece of evidence that was blurted out by a witness in a non-responsive answer to a question, what information would the jury have had from the other admissible evidence in the case as to your client’s propensity?

MR GLYNN:   I do not think, your Honour, that there was anything else that would suggest that he had any propensity to shoot or to kill people.  The evidence was essentially directed towards the fact that he certainly had been looking for the person to whom the other threat, if I can call it that, had been directed.  He had been looking for her for some considerable time.  But otherwise, the evidence was, as I understand it, fairly strictly related to the attack on the victim in this particular case.

GLEESON CJ:   One thing I have not checked on is this.  Was there redirection asked for?

MR GLYNN:   No.

CALLINAN J:   No request to have the jury discharged?

MR GLYNN:   No, no, your Honour.  But, again, in BRS you had a situation where the defence had explicitly accepted the admissibility of the evidence in that particular case and in BRS the point was, in a sense, new at the time it reached the High Court, so that my submission is that, if anything, this is a stronger situation than prevailed in BRS.

Really, finally, your Honours, the point I make is that not only was the jury not directed as to what uses they could not make of the evidence, it was highlighted by the learned trial judge when he included it in his summary of the important evidence in the case, without any direction as to the way in which it could not be used.  Your Honours, I think that is my point in a nutshell.

GLEESON CJ:   Thank you, Mr Glynn.  Mr Rafter.  Now Mr Rafter, I gather from what you said that apart of what you have described as the Dietrich point, we are to refer to the written submissions in support of your application for special leave in B25?

MR RAFTER:   That is right, your Honour.  There is an affidavit being filed this morning by the applicant, or at least a photostat copy of same.  Your Honours may not have that.

GLEESON CJ:   I do not think so.

MR RAFTER:   This is designed to show why it is that legal aid was refused and how it is that he comes to be represented in this way on this application.

KIRBY J:   Has the Crown seen this?

MR RAFTER:   Yes.

GLEESON CJ:   I am not conscious of having that.

MR RAFTER:   Well, your Honour may not because it was only filed this morning.  But it is only a very short affidavit.

GLEESON CJ:   Well, no doubt you can summarise its effect for us, anyway.

MR RAFTER:   Yes.

GLEESON CJ:   Thank you.

MR RAFTER:   Apart from setting out the history of the matter, the date of conviction and filing the application for special leave to appeal, the affidavit is principally designed to show that the applicant has been denied legal aid.

GLEESON CJ:   Yes.  Now, is what you have described as your Dietrich point advanced in support of an application of some kind, and if so, what is the application?

MR RAFTER:   It is an application for special leave to have the Court examine the Dietrich point.

GLEESON CJ:   No, but the Dietrich point is made in support of what application?  You cannot just have a point.  It was nice to have a point, but it does not help you much unless it supports some application for an order that you are seeking to have us make, or some course you want us to take.

MR RAFTER:   The ultimate order is a stay or adjournment.

GLEESON CJ:   Stay of the appeal?

MR RAFTER:   Yes.

KIRBY J:   But what is the use of that?  I mean ‑ ‑ ‑

GLEESON CJ:   The Crown might consent to that.

MR RAFTER:   Maybe.

GLEESON CJ:   Permanent.

KIRBY J:   You would never get the case on. 

MR RAFTER:   Precisely.

KIRBY J:   I do not think that is a good thing from your client’s point of view. You would have to seek some positive relief, would you not, that the Court conclude or make some declaration that Chapter III of the Constitution or something else requires that, in such a matter where special leave is granted, that counsel be provided.

MR RAFTER:   Yes, although the Court does not appear to have the power to do that, although the Court ‑ ‑ ‑

GLEESON CJ:   Or the money to pay the counsel.

MR RAFTER:   The Court does have the power to recommend that legal aid be provided in an appropriate case.

KIRBY J:   “Recommend” is not something courts – in my old days as a member of the Arbitration Commission you would sometimes make recommendations.  More often than not, they were ignored.  Courts do not tend to like putting themselves in that position.

GLEESON CJ:   Exactly, courts make orders which are either obeyed or disobeyed.

MR RAFTER:   Exactly.

GLEESON CJ:   They do not make recommendations which people can ignore.

MR RAFTER:   Except that there is statutory power in the Legal Aid Act for a court to make a recommendation about the provision of legal aid.

GLEESON CJ:   Yes, but ‑ ‑ ‑

KIRBY J:   This is a Chapter III Court we are talking about now.

MR RAFTER:   Yes.

GLEESON CJ:   What exactly is the application you are making to which the decision in Dietrich is relevant?  It is presumably not an application for a permanent stay of your appeal.

MR RAFTER:   It could not be for a permanent stay.

GLEESON CJ:   I can understand Dietrich being used in support of an application to adjourn an application for special leave to appeal, perhaps adjourn it indefinitely, but you are not asking for that, are you?

MR RAFTER:   I could not ask for an indefinite adjournment.

GLEESON CJ:   Are you asking for any adjournment?

MR RAFTER:   The reliance on Dietrich is designed to achieve either a temporary stay or an adjournment for some period of time.

GLEESON CJ:   That is what I wanted to understand, what was the nature of - what this argument is directed towards.  Now, the written submissions are directed towards a grant of special leave to appeal, that is perfectly orthodox.  But I gather that the submissions you desire to address to us are in support of some other order you want us to make?

MR RAFTER:   On the hearing of the appeal itself, if special leave were granted, the Court would, I submit, examine the Dietrich point as it applies to appeals, with a view to granting an adjournment or temporary stay of the appeal itself.

GLEESON CJ:   So this point only arises if we grant special leave to appeal?

MR RAFTER:   It arises if special leave is granted, it arises whether or not special leave is granted, I suppose.

GLEESON CJ:   That is what I want to understand.

KIRBY J:   I do not see why you give away so readily an inability of the Court to make some sort of declaration under the Constitution or offer some sort of relief under the Constitution if, for example, one could read into the requirements of the provisions in Chapter III that there be legal representation of prisoners before the Court in matters where the Court has provided special leave?

MR RAFTER:   Well, Dietrich, of course, did not approach the matter that way, although that was a trial before a Victorian court, but ‑ ‑ ‑

KIRBY J:   I know.  What you are really looking for is a Dietrich plus Kable point in some way.

MR RAFTER:   Yes.

GLEESON CJ:   But it has to be a point aimed at the doing of something by this Court, making an order, presumably, of some kind, or a declaration.

MR RAFTER:   So, too, does the applicant and there have been decisions of State appellate courts, including the New South Wales Court of Criminal Appeal, pointing out the difficulties in relying on Dietrich as it applies to appeals in ‑ ‑ ‑

GLEESON CJ:   But here today, here we are together, you have some written submissions in support of an argument that we should grant special leave to appeal and we will have to deal with that, and now you want to put some oral argument in relation to a matter to which you say the decision in Dietrich is relevant, but what is your argument aimed at?  What are you asking us this morning to do by reference to the argument you want to put on Dietrich?

MR RAFTER:   The argument is designed to achieve at least an adjournment of the matter.

GLEESON CJ:   An adjournment of the application for special leave to appeal?

MR RAFTER:   Well, yes.

KIRBY J:   Last time that was asked for, the Crown opposed it when this matter came before Justice Hayne and myself, is that correct?

MR RAFTER:   That is right.

KIRBY J:   So that tenders an issue, I suppose.  I do not know whether the Crown still opposes.  They may take the Chief Justice’s point and just not oppose it, and allow this to be adjourned indefinitely.

MR RAFTER:   Although that can create difficulties, as your Honour the Chief Justice pointed out in Milat, to have an indefinite adjournment of an appeal proceeding.

GLEESON CJ:   Courts normally do not like having an indefinite adjournment, but I could understand, as actually happened in Milat, as I recollect it, a court giving an adjournment for a limited period in circumstances where there was a reasonable prospect that legal assistance would be made available during that period.

MR RAFTER:   I cannot put material before the Court to suggest that that would happen.

GLEESON CJ:   So what you are just asking us to do is to stand the matter out of the list, in effect, with liberty to restore?

MR RAFTER:   Yes.  The applicant knows the difficulties that that creates for him, that is what he wants done.  That is what I am doing.

KIRBY J:   There have been decisions of the European Court of Human Rights, Granger v The United Kingdom 1990 and Maxwell in 1994, which held that the United Kingdom was in breach of that convention for refusing legal aid to applicants in criminal appeals; but they have something to hook on to, we do not have anything quite like that.

MR RAFTER:   No, not exactly.

GLEESON CJ:   But it is your application this morning - we have to understand what you actually want us to do, as distinct from what you might want us to say or think.  It is your application this morning that we, by standing the matter out of the list or otherwise, grant an indefinite adjournment of the application for special leave to appeal in matter B25?

MR RAFTER:   Or, alternatively, grant special leave to examine the Dietrich point in detail.

GLEESON CJ:   To appeal, grant special leave to appeal?

MR RAFTER:   Yes.

KIRBY J:   Mr Rafter, can I raise a point at the threshold, because it is one ‑ we have to get the order that you are seeking clear, but assuming that that is for some sort of adjournment that the Crown opposes and that on that basis we sent it to a Full Court to consider whether or not that issue itself should be somehow used as a vehicle, this really, with every respect, seems to me a very poor vehicle for tendering the issue to the Court.  The case, on one view, at least on my preliminary view and having read the applicant’s submissions, I know you are here on a pro bono basis and that you are not involved in that, but it seems an overwhelming Crown case, overwhelming.

MR RAFTER:   The Court of Appeal said so and I do not argue with ‑ ‑ ‑

KIRBY J:   The sons of the applicant recognised him.  He was found in hiding after several months.  The weapon that was used in the homicide was found nearby after a search.  It is an overwhelming Crown case, and assume one got the orders that you are seeking right and tendered the issue to a Full Court, one would like to think that it was being tendered in a case where one had a feeling in the back of one’s mind, if only Mr Fox were legally represented by good legal counsel, then this will or might make a difference.  Now, I cannot bring myself to that view in this case.

MR RAFTER:   One can imagine that a good vehicle for bringing the point to the Court would be a case where an unrepresented appellant before an intermediate appellate court somehow managed to argue these points unsatisfactorily and a miscarriage of justice resulted, that might be a better vehicle.  I would readily understand that.

KIRBY J:   And/or where there is a dissent in the intermediate appellate court.

MR RAFTER:   Certainly.

KIRBY J:   That tenders a real issue which the applicant is not in a position to proffer to this Court with the assistance of some proper legal argument.  Then there are plenty of such cases.  But if we look at Mr Fox’s case, a less promising case to tender the Dietrich issue, which is potentially of significance, could hardly be imagined.

MR RAFTER:   Your Honour knows the background as to how we come to be here today arising from the previous application when he came before your Honour and Justice Hayne.  I have to point out as well, so far as the ultimate grounds to be relied on, on the merits of the appeal itself, the applicant relied on one ground before the Court of Appeal relating to the trial judge’s refusal to discharge the jury.  He relied upon just that one ‑ ‑ ‑

KIRBY J:   That is because the juror asked that question early on the first day of the trial about him taking a note of the names.

MR RAFTER:    ‑ ‑ ‑ and a radio broadcast later the same day as well was relied upon ultimately.

KIRBY J:   Then a five week trial ensued, I think.

MR RAFTER:   Yes, certainly.  Now, that was the only ground argued before the Court of Appeal.  The grounds the applicant seeks to agitate in this Court on the substance of the matter are numerous and they are set out in his written submissions and his supplementary submissions, and they include a complaint as to an observation made by the sentencing judge ‑ ‑ ‑

KIRBY J:   The Crown in opposition to your Dietrich/Kable‑type point said that this is not a good vehicle, so you must have had to give thought to that.  Is there anything you can say on that point, because if you do not have a good vehicle, then we do not, in a sense, have to trouble ourselves too much about exactly how the vehicle would be presented, what orders would be sought, because however they would be proffered to the Court, this would not be the case to proffer them.  So, have you got your answer to the vehicle, the fact this is not said to be an appropriate way of tendering the Dietrich point?

MR RAFTER:   It is not the best vehicle for the Court to examine that, I have to readily concede, and there may be better vehicles available, but the point does arise in a sense in that the applicant has been denied legal aid in respect of his application for special leave. 

GLEESON CJ:   I presume applications for legal aid for criminal appeals in this State are merit tested, are they?

MR RAFTER:   They are.

GLEESON CJ:   They are everywhere in Australia, as far as I know.

KIRBY J:   But one would not want, speaking from a Chapter III point of view, to, as it were, delegate or surrender our powers, if the Constitution requires a certain course, to the Executive Government, because that is essentially what the merit testing is.

MR RAFTER:   Certainly.

GLEESON CJ:   Am I also right in thinking that there are available procedures for review of decisions of legal aid authorities?

MR RAFTER:   Yes, yes, your Honour.

GLEESON CJ:   Indeed, does the legislation here provide for an automatic adjournment of a proceeding, including an appeal, in the event that there is a current or outstanding application for review of a decision on legal aid?

MR RAFTER:   It is not automatic, but it ordinarily would be granted.

GLEESON CJ:   Certainly in New South Wales I know that a court has no discretion but to adjourn a proceeding, including an appeal.

MR RAFTER:   Well, the Court of Appeal in Queensland frequently does do that.

KIRBY J:   Is the appeal mechanism within the Australian judicature, or is it a tribunal?  Is it, in short, part of the constitutional court system of the country, or is it a separate tribunal?

MR RAFTER:   Well, it is a separate tribunal, the State Court of Appeal.

KIRBY J:   So it is, again, part of the Executive Government.

GLEESON CJ:   It is a separate tribunal, you say, a State Court of Appeal?

KIRBY J:   The Legal Aid Review Court.

MR RAFTER:   I am sorry, there is a procedure whereby there is an external review officer who examines a decision made by the administrative people in the Legal Aid Office.

GLEESON CJ:   But then is there not a provision for judicial review?  The case of Milat that was referred to earlier was a case where there were proceedings in the Supreme Court of New South Wales, as I recollect them.

MR RAFTER:   There would have been a further avenue of review under the Judicial Review Act in Queensland.

KIRBY J:   That is for legal error, not merits.

MR RAFTER:   That is right.

KIRBY J:   I think you have a statute in this State which is similar to the federal Judicial Review Act.

MR RAFTER:   That is right, it is the Queensland Judicial Review Act, your Honour.

KIRBY J:   Yes.

GLEESON CJ:   Now – I have not read this affidavit yet – but was there an application for a review of the decision refusing legal aid to Mr Fox?

MR RAFTER:   I cannot answer that, your Honour.

GLEESON CJ:   There is no evidence there was.

MR RAFTER:   There is no evidence that there was.

GLEESON CJ:   So all we know relevantly is that Mr Fox applied for legal aid and legal aid was refused.

MR RAFTER:   He gives a date of refusal of his legal aid in the affidavit and I know, although it is not actually in the material, I know that the Public Defender for Queensland re-examined the matter fairly recently, so although that is not in the material, I can confidently state it.  So the matter has, in a sense, been reviewed.

I was going to pass your Honours copies of the decision in Milat.  Your Honour the Chief Justice sat on the Court of Criminal Appeal in New South Wales on that.

GLEESON CJ:   Thank you.

MR RAFTER:   The Dietrich point is discussed in your Honour’s judgment, commencing at the bottom of page 11.

KIRBY J:   Is this reported?

MR RAFTER:   No, I do not believe this particular decision is reported, your Honour.

KIRBY J:   Page 11?

MR RAFTER:   The bottom of page 11.

KIRBY J:   That appears to have been a contested application for adjournment there.

MR RAFTER:   Yes.

KIRBY J:   Not a very satisfactory way in which to tender, at least potentially, a significant point.  If the idea behind Dietrich is that courts themselves should not be faced with the embarrassment of performing their duties which can be reduced to a form of charade in a serious case without proper legal assistance is good for trials, it at least would seem to be arguable that it has some relevance to the appellate process which is now a regular part of the court system.  But you need (a) a vehicle in the sense of a judicial order to which you are directing attention, whether that would be on one of the constitutional writs, or some other means; and (b) you need a vehicle in the sense of an appropriate case.  I do not think here we have either.

MR RAFTER:   Your Honour expressly left the question open in Sinanovic, a case referred to in my written submissions.  Whether this case presents us ‑ ‑ ‑

KIRBY J:   It is an issue in international Human Rights Tribunals, and there has been a lot of law on the subject out of Australia.  One day it may come to the Court, but this does not seem to be the vehicle in either of the senses that I have mentioned.

MR RAFTER:   That is all I have to say, your Honour.

GLEESON CJ:   Yes, thank you.  We will, at this stage, adjourn for a short period to consider the further course we will take in this matter.

AT 11.32 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

GLEESON CJ:   We do not need to hear you.

In matter B58 of 1999, the Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Appeal to warrant a grant of special leave.  The application is refused.

In matter B25 of 1998, there are two matters that have been raised before the Court.  The first is in the nature of a preliminary matter.  Counsel for the applicant, relying upon the principles enunciated in Dietrich v The Queen (1992) 177 CLR 292, has applied for an adjournment of the present application or, alternatively, has raised the possibility of some presently unspecified alternative course that might be pursued. The application for an adjournment is refused. In relation to the possibility of some alternative unspecified course that might be pursued, the present is not an appropriate vehicle in which to explore that possibility. In relation to the merits of the application for special leave to appeal, the Court is of the view that there are insufficient reasons to doubt the correctness of the decision of the Court of Appeal to warrant a grant of special leave. The application is refused.

We will resume for a short time to reconstitute.

AT 11.35 AM THE MATTER WAS CONCLUDED