Grey v The Queen

[2000] HCATrans 569

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S45 of 2000

B e t w e e n -

ANTHONY STEPHEN GREY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2000, AT 4.54 PM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear for the applicant with my learned friend, MR T.S. CORISH.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GAUDRON J:   Mr Blackmore, we think we would be assisted by hearing first from you.

MR BLACKMORE:   Your Honours have seen the written submissions prepared by the respondent.  I can fairly quickly address them.  In fairness, I do not know that I can add to them in great detail.

CALLINAN J:   It has been very properly said by the prosecution that had the prosecutor known about the letter the prosecutor would have drawn it to the ‑ ‑ ‑

MR BLACKMORE:   Yes.  We would submit that is actually a significant issue in this case because if it had been an issue of mala fides - and this is perhaps a distinguishing matter that we would submit may see this matter not be an appropriate matter for leave.

GAUDRON J:   One has to ask, why should one’s being deprived of a chance of acquittal – I know you have an argument about the proviso, but assume that against yourself at the moment.

MR BLACKMORE:   Yes.

GAUDRON J:   Why should your appeal rights in that regard depend on whether there was mala fides, incompetence or plain inattention or ‑ ‑ ‑

MR BLACKMORE:   It may make this difference, with respect:  it may change it from being a fundamental defect in the trial, in other words, if the Crown has deliberately misbehaved in some fashion.  That, of itself, may be sufficient to say that this trial miscarried, in other words, it may be in the Wilde category.

GAUDRON J:   No, if you are looking at the question of miscarriage, the only question is doing to be, assuming error, is whether deprived of a chance of acquittal.

MR BLACKMORE:   Yes.

CALLINAN J:   And Justice Simpson thought that it ‑ ‑ ‑

MR BLACKMORE:   Justice Simpson certainly thought that it did.

GAUDRON J:   It was not just a chance of acquittal.  It was not just the opportunity to cross‑examine, was it?  There may well have been different directions, had this matter been out in the open, and one cannot even postulate that the case would have been conducted the way it was if it were out in the open.

MR BLACKMORE:   It cannot – I am a little – and this is not meant with any disrespect – I am just not sure exactly where the Court is going, though, in the sense that there are two aspects to this appeal:  the Birks competence of counsel aspect and then there is just the fact of non‑disclosure.

CALLINAN J:   But it is very, very unpersuasive to me, I must say, the suggestion that this material or this matter should have been discovered by some clever, vigilant cross‑examination at the committal, which I think was suggested, and ‑ ‑ ‑

MR BLACKMORE:   Can I suggest an issue about that, with respect, your Honour?  As your Honour would know, letters of comfort of this kind are quite often provided to courts but they are put into sealed envelopes and they are not made available to the parties after that time.

GAUDRON J:   Exactly, which is why it is difficult to say vigilant cross‑examination might have revealed that ‑ ‑ ‑

MR BLACKMORE:   I accept that, your Honour, but the real issue here was not, with respect, the letter of credit.  I think it is a bit of a side issue, in essence.  There is no way, having seen the letter of credit - and the Court of Criminal Appeal had it, although your Honours do not have it in the book - that the letter of credit was in fact a testimonial for this witness.  This would be the last thing he would want to put before the jury.  I accept that of course it is the thrust of what is contained behind the ‑ ‑ ‑

CALLINAN J:   Well, I do not know.  Clever counsel might get a lot of forensic utility out of it.

MR BLACKMORE:   I accept that without having to tender it - - -

GAUDRON J:   Without tendering it.

MR BLACKMORE:   Without tendering it.  That is my very point, with respect.  What was it that was not known and what was not known was in fact what sentence was provided to ‑ ‑ ‑

CALLINAN J:   No, it is the impact upon the witness of the knowledge that defence counsel has that letter.

MR BLACKMORE:   But, he would not have it, with respect, necessarily, because it would require a court order to give it to him.

CALLINAN J:   Why would not a court order be made to give it to him.

MR BLACKMORE:   Well, it may have been but we are speculating in relation to that.  At this stage I do not know, for myself, how it was obtained.

CALLINAN J:   I cannot think of any good reason why it would not be given to him.

MR BLACKMORE:   Yes, there are reasons.

CALLINAN J:   What are they?

MR BLACKMORE:   In a case where, for example, there was a co‑accused.

CALLINAN J:   But, this is five years before, this letter.

MR BLACKMORE:   I accept that.  Your Honour asked me in a general question, there would be cases where it would not be given.

CALLINAN J:   No, in this case, why would it not?

MR BLACKMORE:   In this case, well, I cannot think of any reason.

CALLINAN J:   In fact, the prosecutor said had the letter been ‑ ‑ ‑

MR BLACKMORE:   Yes, and we accept that.

CALLINAN J:   In those circumstances, it seems to me that it is at least arguable that it would have been of very considerable forensic utility to the defence to have had the letter.  How the defence actually used it may be a matter for debate but I can think of more than one way in which it could have been used without it being tendered and, indeed, in some circumstances, the defence might not have been averse to tendering it.

MR BLACKMORE:   My submission on this factual issue really is this that had the investigation of this witness by the defence carried to at least looking at the remarks on sentence, and they knew when the man was sentenced, and they knew what sentence he obtained they would have realised the important issue, and the important issue was not the letter of comfort, the important issue was the fact that he got a reduction in sentence, and ‑ ‑ ‑

GAUDRON J:   Which is why I say the directions might have been quite different.

MR BLACKMORE:   Yes, but, your Honour, that is where we get into this “How much investigation was required?”, in a sense, by the defence.  They were fully aware of the date of the sentence, the quality of the sentence, what was involved.

CALLINAN J:   It was five years before.

MR BLACKMORE:   It was five years before.

GAUDRON J:   I take it that the prosecution was equally aware?

MR BLACKMORE:   I cannot gainsay the police were fully aware of it, obviously.

GAUDRON J:   And the prosecuting counsel would have known as much as you say an attentive defence counsel would have found out.

MR BLACKMORE:   I am not sure I accept that, necessarily, because ‑ ‑ ‑

GAUDRON J:   If you did not know there is at least an argument that you should have known as much as an attentive defence counsel would have found out, is there not?

MR BLACKMORE:   There is an argument, yes.

GAUDRON J:   Yes.

CALLINAN J:   The policeman did not let the prosecutor into the secret.

MR BLACKMORE:   Yes, did not let the Crown Prosecutor know, true.

GAUDRON J:   Not an uncommon event, in my experience, and which may actually suggest that there is real need for the Court to look at this issue.

MR BLACKMORE:   Your Honours have my submissions.  I really do not have much more I could say about that, other than ‑ ‑ ‑

CALLINAN J:   There could have been considerable forensic utility perhaps made out of the fact that it was only disclosed belatedly or, in fact, was not disclosed, to the Crown Prosecutor.  That could have been a matter of which perhaps some forensic use could have been made.

MR BLACKMORE:   It certainly could have been put to the police officer, yes, if he had some motive in holding back from that.

CALLINAN J:   Yes, keeping this from the world.  It was just a secret between you and ‑ ‑ ‑

MR BLACKMORE:   Yes.  I cannot gainsay that they could have been used.  We accept that impliedly – well we accept it explicitly in the written submissions. All we can say is that the majority in the Court of Criminal Appeal appropriately considered all of those factors in the facts of this case and given what else they already knew about this witness they considered that it was not sufficient to establish a miscarriage of justice.  There is not any issue of principle, in our submission.  The principles are clear.  It was a question of whether or not in this case they were correctly applied.  In our submission that is not a matter which should trouble the High Court.  I do not really have any ‑ ‑ ‑

GAUDRON J:   Lots of things should not trouble the High Court .

MR BLACKMORE:   Perhaps that was not a very careful way of putting that.  Those are our submissions, any way, your Honours.

GAUDRON J:   Yes, thank you, Mr Blackmore.  There will be a grant of special leave in this case, Mr Byrne.

MR BYRNE:   May it please the Court.

GAUDRON J:   The Court will now adjourn.

AT 5.03 PM THE MATTER WAS CONCLUDED