Gedeon v The Queen

[2014] HCATrans 210

[2014] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S101 of 2014

B e t w e e n -

GILBERT GEDEON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2014, AT 2.25 PM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicant with my learned friends, MR P.D. LANGE and MR D.P. HUME.  (instructed by Michael Doughty, Solicitor)

MR D.G. STAEHLI, SC:   May it please the Court, I appear on behalf of the respondent Crown with MR H. BAKER.  (instructed by the Director of Public Prosecutions (NSW))

BELL J:   Yes, Mr Reynolds.

MR REYNOLDS:   If the Court pleases, we submit there are three issues of importance raised by this application.  The central issue arises where a Court of Criminal Appeal finds an error of law in a trial judge’s exercise of discretion to admit evidence and the issue there is which of the following two things should the Court of Appeal do:  first of all, re‑exercise the discretion itself, which is we say what the Court of Criminal Appeal did here; or, secondly, order a new trial subject only to the caveat that that will not be done if the only conclusion open to the trial judge was to exclude the evidence.

That is the central issue.  On that issue, this Court has looked at that question, or one very similar to it, in a decision your Honours should have of Bunning v Cross (1978) 141 CLR 54. In that decision, Chief Justice Barwick at page 65 applied a test or the type of test which we say should be applied – this is at about point 2 on the page or point 3, referring to the only conclusion that the court below could have come to. Then at about point 6 on the page there was “no room for the exercise of any discretion”.

On the other hand, Justices Stephen and Aickin at the bottom of page 80 in short determined – this is bottom of page 80 and the first half of page 81 – that they should re‑exercise the discretion.  Now, this was not a case involving an appeal under the Criminal Appeal Act or the equivalent, but we submit that that manifests a difference of view within this Court, in substance.

Now, that split in the authorities, we submit, has petered down into the case law in the Courts of Criminal Appeal.  If your Honours go to page 231 of the application book, your Honours will see at about line 5 there is reference to a case of R v Rondo which is in our favour on this point; at line 12 a decision of Dowe and at about line 18 there is a decision against us of R v Dungay. 

Now, I have given my learned friend – there is another decision that is in his favour on this issue, a decision of the Victorian Court of Criminal Appeal and I have the relevant paragraph which I can hand up to your Honours and perhaps leave it to my friend if he wants to take advantage of it, but the point I am trying to make – this is a decision of Sahin (2000) 115 A Crim R 413 and the relevant passage is at paragraph [32].

As your Honours would guess, the reason I am pointing your Honours in the direction of that case is to demonstrate that within Courts of Criminal Appeal in this country there is a divergence of opinion on this particular question.  So we have two views, neither constituting a majority in the High Court, and then various views in the Courts of Criminal Appeal.

BELL J:   Bunning v Cross, of course, involved an order to review from a determination by a magistrate.

MR REYNOLDS:   It did, yes.

BELL J:   It is not necessarily apparent that there was a difference of view between the Chief Justice and the joint reasons.

MR REYNOLDS:   Well, I certainly agree with the first point and I would say in deference to your Honour that this point does not seem to have been ‑ ‑ ‑

BELL J:   Indeed, it was not ‑ ‑ ‑

MR REYNOLDS:   ‑ ‑ ‑ agitated in great detail or anything of that kind and it did not involve the second and third issues which I am going to take your Honours to which is the interpretation of the relevant provision in the Criminal Appeal Act.

BELL J:   Can I just raise with you, before you go to that, quite what the breadth of this proposition is?  You spoke of the Court of Criminal Appeal finding error in the exercise of what you described as “the discretion to admit evidence”. 

MR REYNOLDS:   Yes.

BELL J:   Now, I think in the joint reasons in Bunning v Cross one sees some passing reference to the fact that though it is in the context of a tender of evidence improperly obtained, it is quite common to speak of the discretion to decline to admit it and the Evidence Act puts the boot on the other foot in that respect.

MR REYNOLDS:   Yes.

BELL J:   Nonetheless, it is not a discretionary decision in the usual sense, but judgment having been made that the 138 factors favour admission the judge does not then, as it were, exercise any further discretion.  The evidence is admissible.  The judgment going the other way, the evidence is inadmissible.  Many, many rulings on evidence are made during the course of a jury trial.

MR REYNOLDS:   Yes.

BELL J:   At the conclusion of the trial, is the question for the Court of Criminal Appeal not whether it was an error of law to admit the evidence?

MR REYNOLDS:   Well, that is an expression I am coming to – the second issue that I am coming to. 

BELL J:   Well, perhaps then just if I can follow this up with you. Do I understand?  This argument is not an argument confined to the exercise of a 138 determination.  It applies to every ruling on evidence made in the course of a trial.

MR REYNOLDS:   No.  In a criminal trial where there is a discretionary or weighing process on admissibility, yes, it could well apply.  That is part of the reason we say your Honour should look at granting leave in this case because the issue does not just arise in relation to illegal or improperly obtained evidence, either at common law or under section 138, but also arise in relation to other exercises of discretion or weighing such as unfairly admitted questions. 

BELL J:   I understand.

MR REYNOLDS:   Now, although there is this split in the authorities, the courts in dealing with this issue have not really bitten down and adverted to what we say are the two fundamental issues underlying this which are both questions of construction, namely construction of section 6 of the Criminal Appeal Act, and the text of that is set out at the bottom of page 228 of the application book, and I am paraphrasing a little where it states that the court shall allow the appeal if the judgment of the trial court should be set aside on the ground of the wrong decision of any – we underline that word – question of law.

Now, we say that the question of construction that arises here as between my client and the Crown is this.  We say that a wrong decision of any question of law includes the wrong determination of any issue of law which is an integer in relation to the exercise of discretion.  The Crown says no, that is not good enough. The only relevant question of law here is the bottom line question of whether the evidence is admitted.

GAGELER J:   It goes to the materiality, does it not, of the question, at the very least?

MR REYNOLDS:   Well, that is part of one of the issues that is going to underlie any consideration of this issue by this Court, particularly on the next question that I am going to come to, namely miscarriage, is whether the relevant error was material and that may – I underline that word – lead to a view being taken about how to interpret the next issue which is the words “no substantial miscarriage” in this particular context.

This issue, as I said to your Honour Justice Bell, is going to arise not only in relation to illegally obtained evidence but also other exercise of discretion where there are relevant factors, as there often are in the Evidence Act, and where one of the integers has been the subject of a wrong determination of law. 

Now, the second issue involves as analysis – if your Honours go to page 229 at about line 8 – to the words “no substantial miscarriage of justice”.  Now, what my opponent says here, relevantly, is that if the Court of Criminal Appeal in effect re‑exercises the discretion but correctly taking out the errors and agrees with the trial judge that the evidence should have been admitted, then there is no substantial miscarriage of justice.  That is his interpretation of those words in this context. 

Our interpretation or our construction is that if it was not inevitable that the evidence be admitted – this is what I will call “the Barwick approach” – then there is a substantial miscarriage of justice because my client has lost a real chance of acquittal.  That approach is, as your Honours well know, well supported by High Court authority which is summarised neatly in Mr Lange’s argument at application book, page 230 from about lines 10 to 20.  There are plenty of statements there, including I note by your Honour Justice Bell, and perhaps the high‑water mark is at line 20:

“Because its admission was not inevitable, we cannot say that the appellant did not lose a significant chance of acquittal and it follows that the appeal should be allowed.”

You end up with a retrial.  That is all we are asking for.  Now, the problem for me in making that submission which I want to front up to, both squarely and I hope manfully, is some statements in the decision of this Court in Weiss v The Queen and we have just got a couple of paragraphs I want to remind your Honours of in that.  That is Weiss v The Queen 224 CLR 300, and the particular passages are paragraphs 32 to 33 which your Honours will probably remember and here there is reference to these phrases I have just used - “inevitable”, “real chance” and “open”, and it is noted in paragraph 33 that:

These expressions attempt to describe the operation of the statutory language in other words.

and that that is not the way to proceed.  They say:

They are expressions which may –

I underline that word –

mask the nature of the appellate court’s task in considering the application of the proviso.

Now, the issue – that obviously helps my learned friend to a substantial extent because he says well, that portion of Mr Reynolds’ argument is undermined by later statements, namely Weiss.  But your Honours will have noted that the Court in Weiss did not say that these questions are irrelevant or can never be factored into the inquiry under substantial miscarriage of justice.  Your Honours would know there are many, many cases that have been determined with like statements.  They are not all going to be wrong.  There will be occasions where those expressions are apposite.  We submit that that paragraph in Weiss raises a question of what is the status of these formulae, are they of any continuing relevance, if so in what situations and, in particular, are they relevant in this particular context.

BELL J:   Can I take you back to an anterior issue, that is before one gets to the language of the proviso?  In Maric v The Queen (1978) 52 ALJR 631 Acting Chief Justice Gibbs, as his Honour then was, in the context of speaking of the exercise of a discretionary determination, for example, to discharge a jury, explained that in the event the discretion is exercised against the discharge the appeal is not a review of the rightness or wrongness of the exercise of the discretion but against the conviction and, as I understand it, by analogy that is what is being put against you here.

The Court of Criminal Appeal looks at a trial at which evidence improperly obtained was admitted.  A Court of Criminal Appeal concludes that evidence was rightly admitted and it follows there was no occasion for the court to go on and consider has the fact of some errors that attended the trial judge’s consideration of the admission of the evidence given rise to a miscarriage of justice, much less a substantial miscarriage of justice.  The evidence was rightly admitted in the view of the Court of Criminal Appeal upon its review, taking into account material factors.

MR REYNOLDS:   Yes.  Well, we submit that however one approaches the matter one has to go through the jurisdictional font and look at what relevant powers are being exercised.  This is a statutory appeal; one needs to go back to section 6.  Relevantly, my friend and I are ad idem about the first issue being whether there is a wrong decision on a question of law.  I have been through that.  The next question is, as your Honour Justice Gageler says, once:

there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso.”

That is the bottom of page 242 of the application book.  So those are the two issues that are going to arise and we say there are issues of construction in relation to both which I concede are arguable on both sides.  So far as the authorities are concerned, if a judge say in Queensland looks at this issue then he or she is in some difficulty in the Court of Criminal Appeal because of this split in the authorities.  The issue needs, we submit, to be resolved, first of all because there is a split on the High Court admittedly not interpreting section 6.  Secondly, you have got the split in the lower courts.

GAGELER J:   The split in the High Court is Bunning v Cross, you say, is it?

MR REYNOLDS:   Yes, but with the caveats that I have mentioned.  Thirdly, these issues arise in Courts of Criminal Appeal often in relation to illegally obtained evidence.  Fourthly, the same points will arise in relation to other discretions.  Fifthly, section 6 is mirrored in almost all of the jurisdictions around Australia and, finally, that given the split in the views, the importance of the issues and the frequency with which they arise, this Court is going to have to look at this issue at some stage. 

There is a very clear divide in the case law and I am saying, again, that both of these fundamental questions of construction are arguable on both sides. There is an important question, post‑Weiss, about the status of these formulae about “open” and “inevitable”, et cetera, because it cannot be said that at paragraphs 32 to 33 this Court said you can throw those expressions out the window, they are no longer relevant.

Now, maybe my learned friend will argue that on the appeal.  He may say that, to quote a former Prime Minister, those two paragraphs left those expressions hanging like a carcass swinging in the breeze waiting for your Honours to cut it down in the next case.  That has not happened yet though.  There is still that issue there about the status of those tests. 

The final point we would make is that this is, we submit, a most appropriate vehicle to determine these issues largely because your Honours are not dealing with a hugely complex factual matrix or anything of that kind.  It is a crisp, we submit, neat three points, two of construction, which will need to be determined by this Court at some stage.  We submit they are of importance.  If your Honours please, those are my submissions.

BELL J:   Thank you, Mr Reynolds.  We do not need to hear from you, thank you, Mr Staehli.

The Court of Criminal Appeal reviewed the improperly obtained evidence and concluded that that evidence had been correctly admitted.  In our opinion the interests of the administration of justice in the particular case are not engaged by this application.  Special leave is refused.

The Court is adjourned to 10.15 am on Wednesday, 8 October in Canberra.

AT 2.45 PM THE MATTER WAS CONCLUDED