FX v The Queen

[2022] HCATrans 16

[2022] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S72 of 2021

B e t w e e n -

FX

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 18 FEBRUARY 2022, AT 2.27 PM

Copyright in the High Court of Australia

KIEFEL CJ:   I will announce the appearances of the parties.

MR P.D. LANGE appears for the applicant.  (instructed by Hanna Legal)

MR D.T. KELL, SC appears with MS E.S. JONES for the respondent.  (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Lange.

MR LANGE:   Your Honours, the applicant requires an extension of time.  I do not know whether that is opposed.

KIEFEL CJ:   Is that opposed, Mr Kell?

MR KELL:   It is not opposed, your Honour.

MR LANGE:   I am grateful, thank you.  Your Honours, before I turn to the directions which have been impugned, or sought to be impugned, before the Court of Criminal Appeal, might I briefly remind the Court about some of the background to the case to then…..into, as it were, where we submit the error was occasioned in the Court of Criminal Appeal.  The Court will recall that the applicant was charged – along with his brother, GX – with having committed offences against the complainants but it was not suggested that the applicant was part of a joint enterprise to commit those offences with his brother.  The offences really stood by themselves.  Nonetheless, there was, as the Court will have seen, no objection to a joint trial and a joint trial, in fact, took place.

In the Court of Criminal Appeal it was submitted, however, that the directions given by the learned trial judge were erroneous because those directions failed to appreciate the distinction between the evidence given against this applicant as against his brother GX.  Could I take your Honours, firstly, to the application book at page 29 where those directions appear?  At about point 2 on the page, the first full paragraph, her Honour led into this topic by stating:

Not all of the evidence in this trial is admissible against both accused.

In the next sentences, in that paragraph, as well as in the following two paragraphs, her Honour then outlines discrete areas of evidence which were not admissible against one accused or the other.  Then, relevantly, for the arguments before the Court of Criminal Appeal, the learned trial judge on page 20 of the summing‑up, page 30 of the application book, in the first four paragraphs, stated:

The other evidence though goes in jointly against both accused.

Her Honour extended that direction to the evidence given by each accused in the witness box without any limitation upon that evidence.  In particular, one might take as an example of that evidence which would have been included in that latter direction, namely, the cross‑admissibility, was the so‑called iPad conversation, which involved both the applicant and his brother GX, but, of course, admissions made by one would otherwise be inadmissible against the other, and I do not understand that evidence to have been in dispute.  So much was accepted by the Court of Criminal Appeal at page 211 of the book at paragraph 300 in the second sentence and third sentence:

It was clear that admissions made by one Applicant related to him alone.

And that is just one discrete example which I focus on for today’s purposes to illustrate the difficulty that presented itself at trial.  The cross‑admissibility, apparently on the directions given by the learned trial judge, enabled the Crown to make submissions which had the capacity to, as it were, confuse the cases of one applicant against the other, and those submissions by the Crown can be seen at page 200 of the application book, extracted in – I am sorry, page 199 of the application book, extracted in the Court of Criminal Appeal’s judgments.

KIEFEL CJ:   Importantly, though, no point was taken at trial and no further directions were sought.

MR LANGE:   Indeed, that is quite right.

KIEFEL CJ:   That is fundamental here, is it not?

MR LANGE: That is the nub of the issue before the Court, yes. And in that regard, could I then take your Honours, before coming to address rule 4 and what we contend is the overly restrictive interpretation given to it, to page 190 of the application book, that is also in the judgment of the Court of Criminal Appeal at paragraph 215. And there, the Court recorded:

It was submitted that the trial Judge had stated that, apart from the nominated areas, the other evidence in the trial was admitted jointly against both Applicants.  The Applicants submitted that this statement to the jury was erroneous.

In other words, it was made plain as part of the argument on behalf of both appellants before that court that it was contended the direction given by her Honour about the admissibility of the remainder of the evidence was erroneous.  And that was recognised by the Court of Criminal Appeal on page 210 of the application book at paragraph 291, where Justice Johnson refers to the applicants now saying that those passages have given:

rise to error and unfairness –

In other words, an acknowledgment by the courts that there was a contention that the lack of those directions complained of in grounds 3, 4 and 5 meant that the direction given by her Honour was erroneous. The text of rule 4 is set out in the summary of arguments at page 239 of the book, and although it has now been renumbered as rule 4.15 of the Supreme Court (Criminal Appeal) Rules, the wording is identical, and in my submission, for the purposes of the present argument, one sees that no guidance is given in that rule which would place any limitation upon such matters that can be taken into account in determining whether leave ought to be granted, even in the absence of an objection to a direction.

It is in that context that I invite your Honours back to the Court of Criminal Appeal’s judgment on page 210, where one sees in paragraphs 292, 293 and 295 the court addressing the complaints made under each of those grounds, 3, 4 and 5, relevant for present purposes.  In 292, there being:

some force in the submission –

In 293, again, a recognition that:

the iPad conversation were not admissible . . . the preferable course would have been for such a direction to have been given.

Then, in 295, a concern arising as a result of the possible:

blurring in the trial of the limitations upon the use of evidence –

In my submission, what has occurred is that, as a result of the application of the line of authority of New South Wales which applies to rule 4, the court has not gone on – as is contended by the respondents – in my submission, correctly – to conclude whether or not there was error. Instead, what the court has done is to apply the obiter dicta of Justice McHugh in Papakosmas which has then guided the authorities in this jurisdiction and since to conclude that absence of showing of the miscarriage by the applicants, rule 4 would preclude leave being granted.

In relation to Papakosmas, in my submission, it provides a poor basis for that limitation and Papakosmas was a decision of this Court, of course, reported in 196 CLR 297, where Justice McHugh, at page 319, paragraph 72, set out his Honour’s view as to the applicability of rule 4, in that case, which was then adopted by the Court of Criminal Appeal in the decision of Roach, which, in turn, was cited by their Honours in the present appeal.  As is noted in the written submissions, however, those comments were obiter dicta and were expressly the subject of reservation by Justices Gaudron and Kirby, as appears on page 311, paragraph 44, of that judgment.

Nonetheless, it is plain from the decision of Roach that that series of comments has been adopted in New South Wales to provide contents of the requirement for an applicant to show that a miscarriage had been occasioned in order for rule 4 to permit leave to be granted. In that regard, your Honours will see – in the decision of Roach – that decision of the Court of Criminal Appeal 344 FLR 429 at paragraph 42 – reference to the decision of ARS – which, in turn, makes reference to the decision of Papakosmas. 

In my submission, however, the rule is not as inflexible as is suggested.  Indeed, it has been the subject of critical comments – for instance, by the Court itself in the decision of Greenhalg v The Queen, an unreported decision of the Court, 27 NSWCCA 94, particularly in the judgment of Justice Basten. In my submission, the discussion of the application of rule 4 by his Honour, commencing at paragraph 7 onwards is, in fact, that which ought to govern the interpretation of rule 4, rather than the proscriptive approach adopted currently by the Court of Criminal Appeal in New South Wales and, specifically, in the applicant’s case.

STEWARD J:   Mr Lange, could I ask you this question.  Would you accept that the rule as expressed by Justice McHugh in Papakosmas is at least one way to give content to a test for the need for leave in rule 4?

MR LANGE:   It is most certainly a way of giving content, but might I answer your Honour in two ways.  Firstly, the rule itself is not so limited, and as Justice Basten said in Greenhalgh, one must be careful, of course, to place judicial glosses upon rules, whether they be enacted as regulation or by statute, and the second response I make specifically in relation to this case is that it was not simply a matter of ownership, as was the case in Papakosmas ‑ and his Honour was dealing specifically with the failure to seek a direction under section 136 of the Evidence Act ‑ but rather, as I have sought to establish early on in my submissions, an error on the part of the learned trial judge as to the admissibility of particular pieces of evidence.  And the matters referred to in paragraphs 292, 293 and 295 of the Court of Criminal Appeal’s judgment show what the deficiencies are in respect of that error.  So I hope that is a way of answering your Honour’s ‑ ‑ ‑ 

STEWARD J:   So do you proffer, as an alternative test, the mere identification of error, without…..

MR LANGE:   I do.

STEWARD J:   So there are two possible tests, there is the test of Justice McHugh, and there is your test, and so the question then becomes, why is your test the test that should have been used here?

MR LANGE:   For this reason, in my submission ‑ section 6, of course, is the statutory basis for the right of appeal.  It provides for an appeal to be allowed, obviously, as your Honours well know, in the common forum, on three different bases.  And one of such bases is, of course, the demonstration of miscarriage, and in my submission, what one has here is a case which is very analogous to the decision of this Court in GBF, so in order to answer your Honour’s question could I invite the Court to that decision to make good my arguments.

That is the decision of this Court, reported in 94 ALJR 1037. The error is described in the first paragraph of the head note, that would probably suffice for present purposes, the learned trial judge said there was no evidence from the accused, and that may make it easier to accept the complainant’s accounts. Now, in the Court of Appeal, that was identified as being an error, and the Court will see that from paragraph 13 on page 1040 of the report, but nevertheless, the Queensland Court of Appeal dismissed the appeal, as one can see at paragraph 14, because of a failure on the part of the appellants to show that there had been a miscarriage of justice.

This Court concluded that the Court of Appeal had fallen into error, and could I take your Honours to page 1042, specifically paragraph 24 of the Court’s judgment, and I would ask your Honours to read that paragraph in its entirety, please.  And importantly, in the final sentence where it references, of course, the case of Weiss, and Kalbasi has said something similar:

Any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the provision.

In other words, in the present case, in my submission, the applicant had pointed to error.  If the court had applied the test for which we contend, then the court would have been required to proceed to the next step, that is, to grant leave, permit the applicants to argue the point, and ultimately, in my submission, it would have then fallen to the Crown to show that no substantial miscarriage of justice has arisen.  And that is really where the importance of the test lies, in my submission, because the placement of the

onus can have a substantial impact, in my submission, upon the outcome of the appeal proceedings.

KIEFEL CJ:   That might be so, but in relation to the Court of Criminal Appeal in this case, the conclusion really was in the way of a comment that it would have been preferable for certain directions to have been given, and it concluded that such directions were not required in the circumstances of the trial.  That is not really a finding of error, is it?

MR LANGE:   No, and that is the point that I seek to embrace, in my submission, your Honour, and I say that for this reason ‑ because the court determines that leave should be refused absent the showing of miscarriage, that, practically speaking, debarred the applicant from advancing the grounds.  It was therefore not incumbent upon the Court of Criminal Appeal to establish whether error had been shown or not, since the ground was not to be considered at all.  And it is for that reason, in my submission, one would look at what is said at paragraphs 293, 292 and 295 as well, and the absence of a finding of error.

It is because the court was not obliged to, having determined, we say, applying the wrong test, not to permit the ground to be argued. And in my submission, the court has placed an unnecessary gloss upon rule 4, and for that reason and given the importance of that provision, the administration of justice in New South Wales, it is an appropriate vehicle for this Court to grant special leave to appeal. Unless I can be of further assistance.

KIEFEL CJ:   Yes, Mr Kell.

MR KELL: Thank you, your Honours. First we say that this is an inappropriate vehicle, that the present application is not an appropriate case to consider the interaction between rule 4 and section 6(1) of the Act, because ‑ and I will take your Honours through it ‑ the Court of Criminal Appeal would not have allowed the appeal under section 6(1). And there are a couple of steps to the argument. The first is that the grounds of appeal are set out at application book 131, and your Honours will see that grounds 3, 4 and 5 each relate to an omission from the trial judge’s directions, they are grounds about a failure to direct.

The question for the Court of Criminal Appeal in this case, in determining whether there was a miscarriage of justice for the purposes of section 6(1) – that is, the third limb – was whether the omitted directions, coupled with the arguments advanced, were required in the context of this trial and the summing‑up as a whole.  The Court of Criminal Appeal did not conclude that the omitted directions were required, such that their absence was erroneous or occasioned a miscarriage of justice.

At application book 210 – and my friends have taken you briefly to this ‑ your Honours will see paragraphs 292, 293 and then 295 which respectively deal with grounds 3, 4 and 5.  In relation to ground 3, there is an observation that the court went only so far as to observe that there was some force in the applicant’s submission and it raised for consideration:

the question whether a miscarriage of justice has resulted.

In ground 4, similarly, there was reference to – about halfway down the paragraph – once again:

the preferable course would have been for such a direction to have been given.

But, again – and I will come to the concluding paragraphs – but it takes it no further.  Then, in paragraph 295, reference to ground 5:

once again gives rise to concern –

We say that that was very carefully expressed reasoning by the court, and which did not rise to the level of a finding of error on the part of the trial judge or the occasioning of a miscarriage of justice.

We say that, in this case, there is no finding that there was error and there is a finding that there was no miscarriage of justice.  One can see that at application book 211, paragraph 298, where there is a reference to:

Although it is possible to identify what would have been . . . preferable directions to be given to the jury in the context of this trial, the question is whether the failure to give the directions advanced in this Court has given rise to a miscarriage of justice –

Coupled with the concluding paragraph, paragraph 308, at application book 213, where the Court reasoned that:

I am not persuaded that FX lost a real chance of acquittal as a result of the matters complained –

Then, further in the next sentence:

FX has not demonstrated unfairness in the trial nor a basis upon which he should be granted leave –

STEWARD J:   Mr Kell, what do you say about what Mr Lange says at paragraph 3 of his reply about the other evidence direction?

MR KELL:   Yes.

STEWARD J:   He contends that that must mean that it was a direction to use evidence against GX – against FX – as well as the iPad evidence.

MR KELL:   I am sorry, your Honour, thank you.

STEWARD J:   No, not at all.

MR KELL:   So, just to identify – so, your Honours, at application book 202, the court, starting at 201, extracts the summing‑up, the relevant part of the summing‑up, that starts at paragraph 264, then the reference to the other evidence aspect of that, more complete references in the summing‑up is at application book 202 at about point 7 of the page.  We say that, read in context and understood in context, and read in the judgment as a whole, that the other evidence direction was not erroneous or a misdirection, and that it was not held by the Court of Criminal Appeal to be so.

So the applicant contends that the reference was erroneous because it could have referred to the whole of the three‑way conversation, this is what is referred to as the iPad conversation between FX, his brother, and SX, the complainant’s mother, in circumstances where admissions were made in that conversation by FX and GX that were not cross‑admissible against one another, and that is accepted by the court that that is the position.  But if one looks at application book 211 of the judgment, at paragraph 300, the court carefully reasoned, when describing the particular features, that although the admissions were damaging, and they are described as such, damaging towards a particular applicant, that they related to each of – and this is about five and six lines down:

It was clear that admissions made by one Applicant related to him alone.

And so the admissions made by each of them in no way implicated the other applicant, and in context there was no real question of cross‑admissibility because the evidence of the admissions would have been relevant in the other’s case.  And in addition, the jury would not have impermissibly treated it as relevant because they had been directed by the trial judge that each charge had to be assessed separately and that the cases could not be considered in a global fashion, and one can see that if one goes to application book 202 – perhaps I can do it in stages.

If one goes to the opening remarks which are set out at application book 197, paragraph 252 of the judgment, in the opening remarks the jury are told in clear terms that there are 21 counts, they are being heard together for convenience, that each one is required to be considered separately and

the like, so it is a separate consideration direction.  And then if one jumps to the summing‑up at application book 203, starting really at the bottom of page 202 at paragraph 265:

The trial Judge gave the jury directions concerning separate consideration of each count against each Applicant –

And then set out, the paragraph at the top of application book 203 is the separate consideration direction which was reinforced in the summing‑up, including that last sentence, which directs the jury that they are not to consider matters:

in a global fashion but on each particular count.

And so, we say that this a case where the court was called upon to consider whether a miscarriage of justice arose in the particular circumstances, including from the failure to give the directions which were complained about in the Court of Criminal Appeal, and the relevant conclusion at paragraphs 303 to 308 – to which I have taken your Honours – was that no miscarriage of justice arose.

The appeal on grounds 3, 4 and 5 failed in this case because no miscarriage of justice was shown for the purposes of section 6(1), and rule 4 was not regarded by the Court of Criminal Appeal in this case as an additional burden to be discharged or an additional barrier that was imposed on the applicants. So, while there may be potentially some questions of interest in a general sense that surround rule 4, we say that, properly understood, this case is not an appropriate vehicle in which to raise those questions. Unless your Honours have any questions, those are our submissions.

KIEFEL CJ:   Thank you, Mr Kell.  Is there any reply?

MR LANGE:   Yes, only briefly, your Honour.  In my submission, the respondent’s reliance upon the separate consideration direction does little to address the complaint that was raised on behalf of the applicants.  The direction given by the learned trial judge as to the separate consideration of each count was, of course, entirely unobjectionable and unremarkable, but, in order to determine how to consider each charge separately, the jury had to be given correct directions about what evidence was admissible and could be taken into account when considering the various offences separately.

In that respect, particularly with regard to the iPad conversation, in my submission, there was a very real risk that the complainant’s credibility would be bolstered by the ability of the jury to rely upon admissions by one

of the accused in the case against the other.  In my submission, certainly nothing said by the learned trial judge would have precluded that line of reasoning by the jury, had they been so minded.

Once the jury looks at the – for present purposes – the admissions by GX – and concludes that they persist in assessing the credibility of the complainants, and then consider whether or not the admissions, as contended for by the Crown, were part of the proof of the cases against the applicants, then that was an erroneous process of reasoning, and should not have been permitted.

It was plain, for the reasons I articulated in submissions in‑chief, that it was contended by the applicant, and accepted by the Court of Criminal Appeal, that it was asserted on his behalf that there was error in the directions. In my submission, it was plain that that error existed, there can be no doubt that the iPad conversation, for instance, insofar as there were admissions by GX, was not admissible against the present applicants. It is for that reason that, in my submission, the interest in questions concerning rule 4…..this is an appropriate…..Unless I can be of further assistance?

KIEFEL CJ:   Yes, thank you.  The Court will adjourn to consider the course it will take.

AT 2.57 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.01 PM:

KIEFEL CJ:   In our view there is no reason to doubt the correctness of the Court of Criminal Appeal’s conclusion that no unfairness resulted from not giving the directions which the applicant now contends but did not at trial contend were necessary. No sufficient basis was shown for the grant of leave under rule 4 of the Criminal Appeal Rules (NSW) to raise the matter as a ground of appeal.

Special leave is refused.

AT 3.02 PM THE MATTER WAS CONCLUDED