Griffin v The Queen

[2008] HCATrans 72

[2008] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C4 of 2007

B e t w e e n -

CHRISTOPHER GRIFFIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 FEBRUARY 2008, AT 9.32 AM

Copyright in the High Court of Australia

MR B.J.E. COLLAERY:   If it please the Court, I appear for the applicant.  (instructed by Collaery & Colquhoun)

MR M.K. CHILCOTT:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (ACT))

KIRBY J:   Yes, Mr Collaery.

MR COLLAERY: Your Honours, we say that there are three errors of the appellate court. First, the intervention itself, and we deal with that on orthodox grounds. Second, treating section 21 of the Human Rights Act (ACT) as, to paraphrase his Honour Chief Justice Higgins in that court, creating a difference in “emphasis rather than of substance”. That is in the book at 25, 5. In the alternative, we just say on the ordinary common law grounds of weighing prejudice, our third ground on the application is that there was a misapplication of the common law in terms of the degree of prejudice to the accused.

On the intervention issue, that is the appellate intervention, we noted what this Court has said on occasion in Lowndes and in Markarian, and we note that both the appellate court and the respondent can point to no error of fact or law by the primary judge.  Rather, both the Court of Appeal, the appellate court, and the respondent, want to weigh the degree of prejudice to the applicant, and we are going to rely on a Canadian authority and say that is directly contrary to the long‑established majority view in Carosella in Canada.

We say that the respondent is clearly aware of that because, as he then was, Mr Refshauge accepted the position that he could point to no error of fact or law that says relying upon House v The King that the weighing was either unreasonable or plainly unjust.  That reference by Mr Refshauge is at 95 of the book at 30.  So not finding an error of fact or law he relies on House v The King.  We cannot see where he pointed up the unreasonableness of the decision, but he says the injustice is that the respondent is shut out of prosecuting. 

The more interesting ground for us and the core of the issue, your Honours, is that for the first time in the history of this Court, as far as we can see it, a codified version of Article 14 from the covenant is before this Court as in the context of the paramountcy of the written law of this Territory.

KIRBY J:   That might be so, but the facts of the case are rather unclear and will not really become clear until the trial.  This Court has said countless times, as you would know ‑ ‑ ‑

MR COLLAERY:   I have seen that, your Honour.

KIRBY J:   It will not normally become involved in interrupting criminal trials because the experience of the courts is that many of these problems go away in the course of the trial.  I mean, you may, by relying on the loss by the prosecution or by the authorities of the shirt, be able to convince the court or the jury that this is a terrible prejudice to your side, and in that event we are not troubled.

MR COLLAERY:   Indeed, your Honour.  I have read those enjoinders, particularly of your Honour, from time to time, and I do say ‑ ‑ ‑

KIRBY J:   You have enjoyed it when we have said that, have you?  It is sensible and it is also respectful of the trial courts and of the criminal trial.

MR COLLAERY:   I do say, with respect, your Honour, that in Canada the view has been taken that once the applicant establishes that a substantive right is breached then that invokes their Charter – a provision which is the same as the one in the ACT – and that what your Honour is saying, with great respect, is indeed, the common law position developed by this Court out of the common law, but since, we say, there is a Human Rights Act and since, if one accepts the majority view in Carosella – and I might read that ‑ ‑ ‑

HAYNE J:   Just before you come to Carosella, were any of these aspects of the application of the Human Rights Act explored in any depth in the courts below, because I see no reflection of that exploration in the reasons given below?

MR COLLAERY:   I am well aware of that and they were explored in great length in written submissions.  Carosella, La, Griffin, the New Zealand authorities ‑ ‑ ‑

KIRBY J:   What about the decisions of the European Court of Human Rights or the Human Rights Committee of the United Nations.  I do not see any reference.  There are books on this, you know.

MR COLLAERY:    Yes, and Foucher was explored.  I know your Honour would have liked to have seen those issues ‑ ‑ ‑

KIRBY J:   I mean, I just expect if you are coming here and telling us how historical this is and how this is a very important case – as there will be important cases under the Human Rights Act – then one would expect, as Justice Hayne has said, to see some exploration of the jurisprudence that is relevant to the covenant in the decision of the court below.

MR COLLAERY:   Your Honour, I concede that, and I remarked in the car on the way here that our application book to the appellate court below was far more voluminous and covered these issues, and I regret the fact that we did not replicate most of that argument. The Court of Appeal did not adopt or argue any of those positions. It merely said that section 21 created a difference in emphasis and thanked us for our wordy treatise – I think it is in the judgment – but did not address any of the issues and we feel that is the error.

The emphasis on the common law approach and the reading down of section 21 when - in Carosella the Supreme Court has taken – has continued its long line of authority.  The threshold is not the weighing of the prejudice as in the common law context, but find a substantive right breached substantively and that is the threshold.

KIRBY J:   But the facts are very unclear.  I realise your client’s case is that the prosecution have charged the wrong person.  That is essentially what he says, is it not?

MR COLLAERY:   Yes, your Honour.

KIRBY J:   He said it, I think, right from the very beginning and that might be a view the jury take and then we are not troubled by it.  That is one of the reasons for a disinclination on the part of appellate courts, generally, and of this Court, in particular, to become involved in interlocutory appeals in criminal trials.

MR COLLAERY: But that barren ground, your Honour, to some extent, has been opened up by section 21, only in the Australian Capital Territory and the Commonwealth.

HAYNE J:   But do you propound as an absolute rule that there can be no fair trial if real evidence, such as this shirt, was in the possession of the authorities but cannot now be produced?

MR COLLAERY:   We say that, your Honour.

HAYNE J:   An absolute rule?

MR COLLAERY:   We say here is an accused who does not know how he was stabbed.  There is an alleged aggressor who concedes nothing other than that the knife may have fallen from his car.  The accused is to be otherwise put to his trial in a circumstance where, if one reads the direction suggested by the appellate court, in our respectful view, inevitably there has to be an acquittal.  The accused, contrary to his human right, now, in the ACT is being put to a trial that he must win. 

KIRBY J:   Surely that cannot be an absolute.  It would depend upon what the evidence is.

MR COLLAERY:   I cannot possibly say that, but that offends the integrity of the system, in our view, and that is why the legislature has seen fit to bring in a different threshold test.

KIRBY J:   But once you accept that it is not an absolute on every aspect of every bit of real evidence then you are into the problem of finding out what is the impact of the loss of a shirt in this particular case.

MR COLLAERY:   I say, with respect, no, your Honour.  That still is a weighing of the prejudice.  All, under the Act, does an applicant have to establish is that there is a substantive right.  That substantive right, on the balance of probabilities, being the test developed in Canada by the majority, is offended and for reasons of ordre public and the rest the trial should not continue, someone should not be put to their trial where the Crown has negligently lost evidence.

In the subsequent case of La, there was some distinguishing between accidentally destroyed because – of course, eager lawyers in Canada have jumped on every lost piece of evidence to try and say a trial is not fair.  So in La the Supreme Court strengthens their view and says on the balance of probabilities the substantive right is engaged.

That is the weighing.  That is a conundrum, your Honour, I agree.  It cannot be absolute.  But, we say the gate test is not the weighing of a prejudice to the accused but, as they say in Carosella at paragraph 27:

This Court has consistently taken the position that the question of the degree of prejudice suffered by an accused is not a consideration to be addressed in the context of determining whether a substantive Charter right has been breached.

So the position in Canada, and I must say, it is invariably 5:4.  The charge on this score is led by his Honour Sopinka and on the other side it is her Honour L’Heureux‑Dubé and that is consistent in the authorities.  So, I accept that it is a relatively marginal line, but it is a vexed issue in that court.  To me it will be a recurring theme in this jurisdiction of the ACT.

KIRBY J:   You do not lose this point, do you, if the matter goes to trial?  You can save it up in the event that you do not succeed before the jury on the merits of the case?

MR COLLAERY:   You are absolutely correct, your Honour, but I say why should an accused be put to his trial.

KIRBY J:   I understand your argument and I understand the significance that you attach to the threshold question of the fair trial, but against that we have to balance the fact that the Court’s jurisprudence is very strong against interference in an interlocutory stage in criminal trials because otherwise people with a lot of money or determination can prevent the matter coming to a head and from the point of view of appellate courts many of these problems go away and are not then necessary to be resolved in the appellate court.

MR COLLAERY:   I agree, your Honour.  I accept that there are very good reasons why interlocutory matters should be treated with great and considerable care.  In our view – I have stated our view – we feel that the accused is being unjustly put to trial that cannot succeed and, indeed, it will go ‑ ‑ ‑

KIRBY J:   That would become clear, would it not, one way or the other in the course of the facts that were adduced at the trial as to what effect the lack of the shirt had upon the fair trial of the accused?

MR COLLAERY:   Yes, indeed, it will go away, your Honour, but after the applicant and his family are impoverished when they claim here their right ‑ ‑ ‑

KIRBY J:   Presumably, you would be entitled in the course of the trial, having regard to the way the prosecution evidence comes out, to renew an application based on the Human Rights Act.  I am not seeking to encourage that but that would be your legal right, I assume.

MR COLLAERY:   By that stage, I fear an argument about the non‑fragmentation of the criminal process would be stronger against us.

KIRBY J:   The judge at trial might come to the conclusion along the lines of what you are saying in the course of the presentation of the prosecution case, and before you are called on to answer.

MR COLLAERY:   There is a distinct possibility of that, your Honour.  I am quite certain Mr Refshauge will not be listed for the matter and he will not be a recalcitrant ‑ ‑ ‑

KIRBY J:   That is true, but I must admit to you that although I read the facts carefully, they were so confused and so uncertain that I was left in a

state of uncertainty as to what had happened, and that uncertainty would not really be resolved until the facts were adduced at trial by the prosecution.

MR COLLAERY:   Yes, your Honour, the conundrum is we had a full committal, but of course at that committal the accused did not give evidence.  I cannot cavil with the fact that lawyers will queue here unless a reason for intervention in this case is entirely different than what it would be elsewhere, and it would be entirely different, in my view, your Honours, because it could only be a queue of ACT applicants because there is no such provision yet.  There is the beginnings of a charter in Victoria but that has been the challenge in Canada and that court has seen fit to hear these applications despite that ‑ ‑ ‑

KIRBY J:   You know me well enough, Mr Collaery, that if there had been some legs in this I would have been the first to bring it up ‑ ‑ ‑

MR COLLAERY:   Indeed, your Honour.  I was warmed to see the listing ‑ ‑ ‑

KIRBY J:   Yes, I am sure your heart leapt up, but the fact is that the evidence is so uncertain and confused that until that is clarified it is very hard to ask this Court to become involved and particularly where, in this case, there really is not any exploration of the human rights jurisprudence which one would expect to be laid out for the High Court when cases of this kind come.  There is after all Lord Lester’s textbook on the European Convention, and there is the textbook published in Australia by Monash University on the International Covenant.  So there is a lot of material on these questions.

MR COLLAERY:   Indeed, there is already a text on the Charter of Rights which cites this case at appellate level as authority, and another case that I conducted.

KIRBY J:   Your time will come, I am saying to you.

MR COLLAERY:   I am reading between the lines, your Honour.  So, really, I will not address the Court any further on the matters.  I thank your Honours.

KIRBY J:   Thank you.  The Court does not need your assistance on this occasion, Mr Chilcott.

This Court has said many times that it will not ordinarily intervene in criminal trials by granting special leave on interlocutory appeals that would have the effect of delaying the trial.  See, for example, Elliott v The Queen (1996) 185 CLR 250.

Here, the applicant secured a permanent stay of criminal proceedings by order of Justice Crispin in the Supreme Court of the Australian Capital Territory. His Honour’s orders were reversed by a unanimous decision of the Court of Appeal (Chief Justice Higgins, and Justices Gray and Madgwick). The applicant wishes to reagitate the stay which was based on his right to a fair trial, both by the common law and in accordance with section 21 of the Human Rights Act 2004 (ACT).

The facts of what happened in the incident leading to the charges of attempted murder, intentional infliction of grievous bodily harm and reckless infliction of grievous bodily harm are confusing and unclear.  Essentially, the applicant claims that the prosecution has charged the wrong person.  He alleges that a fair trial cannot be had because of the loss of real evidence by the authorities.  However, whether this would be so would become much clearer following the trial. The point would doubtless be reserved, fully argued and decided at trial by reference to relevant authority.  It would be premature, and may prove unnecessary, for this Court to embark on those issues now.

Accordingly, special leave to appeal is refused.

The Court will now adjourn in order to begin the video link and the Brisbane list.

AT 9.50 AM THE MATTER WAS CONCLUDED