Haddon & Anor v Everitt

[2003] HCATrans 698

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P6 of 2002

B e t w e e n -

CAROLE PATRICIA HADDON and BRONWYN VANESSA HADDON

Applicants

and

ROBERT WILLIAM EVERITT ON BEHALF OF THE COMMISSIONER OF POLICE

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 MAY 2003, AT 1.21 PM

Copyright in the High Court of Australia

MS B.V. HADDON:   I appear for my mother and myself in this matter.

MR R.E. COCK, QC:   I appear for the respondent with my learned friend, MS A.J. BURROWS.  (instructed by Director of Public Prosecutions for Western Australia)

McHUGH J:   Yes, very well.

MS HADDON:   Quoting from Seaford Court Estates Ltd v Asher [1949] 2 KB 481 at 499:

when a defect appears a judge cannot simply fold his hands and blame the draftsman.  He must set to work on the constructive task of finding the intention of Parliament . . . A judge should ask himself the question:  If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out?  He must then do as they would have done.  A judge must not alter the material of which it is woven, but he can and should iron out the creases.

In this case, your Honours, the fundamental defect going to the root of the proceedings and ‑ ‑ ‑

McHUGH J:   Did not Lord Simonds have some serious criticisms to make of that statement in a subsequent case?

MS HADDON:   I am sorry, your Honour.

McHUGH J:   Did not Lord Simonds, sitting in the House of Lords, have something to say about that approach to statutory construction?

MS HADDON:   I was not aware of that, your Honours, but in any event ‑ ‑ ‑

McHUGH J:   It is just a recollection in my mind 40 years ago, but anyway.

MS HADDON:   In any event, the appeal turns on the fact that the prosecution violated privilege.  The purpose of this prosecution was not to bring a trial according to law, but it was to take a complaint that was going into internal affairs on the very day that it was going into internal affairs.  Accordingly, we rely on the reasoning of Justice Wallwork.  This was a fundamental defect going to the root of the proceedings for which the majority had no guidance reasoning ‑ ‑ ‑

McHUGH J:   Sorry, what do you mean by “a fundamental defect going to the root of the proceedings”?

MS HADDON:   Because, your Honours, criminal proceedings cannot take place in violation of privilege in any circumstances.  The Crown ‑ ‑ ‑

McHUGH J:   In violation of what?

MS HADDON:   In violation of privilege.  It is a sacrosanct doctrine as held in Baker v Campbell.

McHUGH J:   Well, it did not.  The Crown sought to rely on other material and ultimately nothing happened over it, did it?

MS HADDON:   Well, the other material, your Honours, did not meet the elements of the offence.  The issue in the cost proceedings is that because the issue of privilege was not taken into account it is for that reason that we were deprived of our costs.  Had the wrongful conduct of the Crown been taken into account, it would have been mandatory for us to receive a special costs order, because the violation of privilege is at the upper limit of the test of special difficulty, complexity or importance contemplated by section 5(5) of the Act.  If the discretion is not taken into account, the discretion has fundamentally miscarried.

McHUGH J:   Yes.

MS HADDON:   In Walton v Gardiner it was held that one of the ways in which a trial can be oppressive is if it is foredoomed to failure.  The oppression exists in forcing the accused through the trauma of a trial and because the prosecution is foredoomed, no public interest is served.

McHUGH J:   But this prosecution was not foredoomed.

MS HADDON:   It was, your Honours, because ‑ ‑ ‑

McHUGH J:   Well, you assert that, but you have no factual finding in your favour to that effect.

MS HADDON:   Justice Wallwork – we rely on the dissenting reasons of Justice Wallwork.

McHUGH J:   Well, where does Justice Wallwork say it was foredoomed to failure?

MS HADDON:   I will get to that.  Quoting from page 118 of the application book at paragraph 84 from his Honour’s reasons:

It was submitted for the appellants that it had been because the matter had not been properly investigated prior to the appellants being charged that the prosecution was always doomed to failure.  It was further submitted that the costs awarded had not taken into account any of the errors on the part of the prosecution.

Continuing to quote from Justice Wallwork at application book page 117 paragraph 82.

McHUGH J:   Yes, but he is reciting the submissions on your behalf.  Where does he make a finding to that fact?

MS HADDON:   He accepts that the privileged documents were unlawfully seized, because he makes the finding by giving us an award of $13,000 in ‑ ‑ ‑

McHUGH J:   Take us to the passage.

MS HADDON:   He quotes from the words of Justice Brennan in Baker v Campbell (1983) 153 CLR 52 at 108. That is what his Honour relies principally upon:

The second class of privileged documents which will not be permitted to afford evidence as to the commission of an offence comprises documents that are brought into existence by or on behalf of a party to litigation  . . . whether present or reasonably anticipated (Grant v Downs) –

(1976) 135 CLR 674.

The legal professional privilege attaching to such documents ordinarily ‑ ‑ ‑

McHUGH J:   Yes, I appreciate that, that is a passage we are familiar with.  But where does Justice Wallwork say that this prosecution was foredoomed?

MS HADDON:   Well, I quoted you his reasoning where he does not actually say it was foredoomed but he upholds it by the amount of $13,000.

McHUGH J:   Well, that is what I want to know.  I mean, that is just an assertion.  Where is the passage that he gives as his reason for upholding it the point that you are now making?

MS HADDON:   At page 123 paragraph 112 of the application book.

McHUGH J:   Yes, where particularly?

MS HADDON:  

It was contended that all of the abovementioned matters had increased the special difficulty, complexity and importance of the case and had not been recognised in the sum of $5800 for the costs.  That the discretion had fundamentally miscarried.

That is the issue, the discretion has “fundamentally miscarried” because the issue of privilege has not been taken into account.  It is a sacrosanct option. It cannot be violated in any circumstances.  It cannot be violated to uphold criminal proceedings or to be used as evidence in a criminal trial.  We were positively innocent with or without the documents, yet they were used to sustain ‑ ‑ ‑

McHUGH J:   Well, you keep asserting that there ‑ ‑ ‑

MS HADDON:   Well, we were found positively innocent ‑ ‑ ‑

McHUGH J:   No, you were not found positively innocent.  The magistrate found that the prosecution had not satisfied the onus of proof that was required.  There was abundant evidence upon which you could have been convicted.

MS HADDON:   There was no evidence upon which we could have been convicted, the issue being that the entire proceedings were contaminated by the violation of privilege so that the court could not determine the matter according to law.  Where the entire matter is contaminated by ‑ ‑ ‑

McHUGH J:   The question of privilege had nothing whatever to do with the charge.  I mean, there were findings of fact by the magistrate that you and your mother were acting in concert and that you had made, I think, a total of four telephone calls and two unwanted visits to the home and an approach to the school and, on top of that, there was evidence that during the same period there were some 15 phone calls made while the wife was there and 15 to 25 while the husband was there. 

Now, it would be a remarkable coincidence if the victim was being harassed by two different sets of people at the same time that you had made these calls.  Now, the magistrate did not draw an adverse inference to you, so you succeeded, and you are entitled to rely on it, but to say that the case was foredoomed to failure is, as Justice Steytler said in the Full Court, a matter without any substance.

MS HADDON:   Your Honour, are you saying that the verdict of acquittal is entitled to be attacked by the Full Court in a costs appeal?  Are you saying that the verdict of innocence cannot stand?

McHUGH J:   It is not attacked.  In determining whether or not costs should be made, one takes into account the conduct of the parties.

MS HADDON:   That is correct.  In this case though, your Honours, an inference cannot be drawn because in the case of Chamberlain [No 2] (1984) 153 CLR 521 at 536 it is stated that an inference cannot be drawn where there are other inferences open. His Worship the Magistrate said that there were other inferences open because the husband of the complainant has said ‑ ‑ ‑

McHUGH J:   Well, if Chamberlain says that, it is wrongly decided, but it does not say that.  In any event, Chamberlain has been overruled on the circumstantial evidence point.

MS HADDON:   An inference can never be drawn against the defendant where there are other inferences capable of being drawn and, in this case, the entire case is contaminated by the violation of privilege so that the court cannot determine the matter according to law.  The privileged material contains material facts that show that the appellants are positively innocent.  That complaint is taken so that the police can fabricate evidence to the contrary.  Of course, we could not get a fair trial because we could not use those material facts because they were subject to privilege.  That is the violation.  That is the oppression.  It goes to the root of the proceedings.  How can the proceedings be fair or proper in accordance with law?  Even if the verdict is a verdict of acquittal, now we have the erosion of that acquittal in relation to costs.

In Latoudis v Casey that principle was outlawed.  Whether the Crown has a case, the strength of the Crown case is not a relevant factor in the award of costs.  It must be looked at from the perspective of the successful defendant.  In this case we have gone through all of that oppression, the violation of privilege, we were found innocent, and now the Full Court, their Honours Justices Steytler and Kennedy, seek to attack the acquittal.  That is exactly what they are doing; they are re-litigating the proceedings.

McHUGH J:   You brought a number of applications on which you failed and it was perfectly within the discretion of the court to refuse you any costs in respect of that.

MS HADDON:   So the issue that has been relied upon in these proceedings is that we changed solicitors, your Honours, and that we argued ancillary applications.  The purpose of those was to rightfully secure an acquittal, and we were rightfully acquitted.

McHUGH J:   Yes.

MS HADDON:   So in order to secure that acquittal, our conduct in securing the acquittal becomes the basis upon which this reasoning is correct.

McHUGH J:   But that does not mean that the prosecution has to pay for the defence every time the defence changes its solicitors.

MS HADDON:   Well, there were only two changes, your Honours, and, in any event, the proceedings are foredoomed, so there can be no question that we are in any way to blame.  The blame has been shifted to us and we were the victims of the violation of our complaint which was subject to privilege.

McHUGH J:   Well, there is no finding of fact, in this case, at any level, that the proceedings were foredoomed.

MS HADDON:   In any event, your Honour, it does not have to turn on that.  Our other appeal grounds are that it is unjust for us to be attacked for the way in which we obtained an acquittal.  When an acquittal is a verdict of innocence, it is a final verdict.  The Full Court, in deciding this matter, sought to rely again on the fact that they say we placed telephone calls that the magistrate had found we did not place.  They were attacking the acquittal.

McHUGH J:   The Full Court said nothing – made no findings about those other phone calls.

MS HADDON:   Yes, they did, your Honour.  At page 134 of the application book they say that it was open for the court to find those calls ‑ ‑ ‑

McHUGH J:   Of course, but that was because they are dealing with whether the discretion was properly exercised ‑ ‑ ‑

MS HADDON:   Yes, but the discretion must be ‑ ‑ ‑

McHUGH J:   ‑ ‑ ‑ and this was in answer to your argument that the case should never have been brought and was foredoomed to failure.

MS HADDON:   But, your Honour, even if you put that to the side, our argument is that we have been oppressed, because we have been held responsible for the costs of the case when what we did was to successfully exculpate ourselves.  The verdict of innocence must stand.  The Full Court has sought to erode the verdict of innocence by attacking it, by saying that the magistrate should have determined the matter differently.  That is not the place in which it sits.  It sits as an appeal court determining the cost discretion.  In Latoudis v Casey it was held that the cost discretion must be exercised according to law.  It must be exercised, according to Chief Justice Mason, from the perspective of the successful defendant.  To do so conforms to fundamental principle.

Here we have all of these matters of special difficulty, complexity or  importance at the upper limit of the cost test not taken into account, yet our conduct, our lawful conduct, in securing an acquittal is under attack by the Full Court.

McHUGH J:   Yes.

MS HADDON:   We did nothing.  We were found not guilty and we were found positively innocent during the hearing of the costs appeal before their Honours, including the Chief Justice.  His comment was to the effect that nothing that we had done met the elements of the offence, so all of that goes to the side.  What we are then left with is the amount of costs.  The fact that the defendant secured an acquittal, that is under attack in the way in which we did it.

In Latoudis v Casey the fundamental consideration is our perspective as the successful appellants, as the successful defendants.  Our perspective has not been taken into account, not in relation to the oppression, not in relation to the amount of costs, not in relation to the fact that we did what we had to do lawfully to secure an acquittal.  None of that has been taken into account by the Full Court and they did seek to attack the acquittal by substituting their own reasoning for that of the magistrate, saying that it was open for the court to infer that we had made those telephone calls.

I would like an opportunity to answer that, your Honour, for the purposes of fairness.  In relation to those telephone calls, the complainant took about eight months to complain.  The two traces, the Telstra technicians who had allegedly traced these calls never – the calls ‑ ‑ ‑

McHUGH J:   Did you give evidence in the case?

MS HADDON:   No, there was no evidence given by us and we did not cross‑examine.

McHUGH J:   No.

MS HADDON:   That is how foredoomed the Crown case was,  We did not cross‑examine and we did not give evidence in our defence and the essential elements of the offence were not met, yet the trial proceeded.  It proceeded to silence us because we told the truth, that my father was a danger to children, because he had molested a child in South Africa.  We have medical records to that effect.  We can prove that.  The Crown never put up any basis in this court case to say that it was not bona fide.  It just sought to oppress us.

What we actually have here in relation to costs is a perverse verdict, because we have the magistrate saying that we are innocent, we have proceedings proceeding in relation to the violation of privilege which cannot happen – it is oppressive and an abuse of process.  The only just outcome is that we receive an acquittal.  We are then further punished by not being awarded our full costs, even though we are at the upper limit of the section 5(5) test.  That test, ordinarily, would relate to prosecution brought in the public interest.  This was not brought in the public interest in the performance of any proper purpose, according to law.  It was based upon the violation of privilege to prevent the complaint going to internal affairs.  We are now punished.

The authority of Latoudis v Casey, the authority of the High Court, has been completely disregarded regarding the manner in which a discretion is to be properly exercised according to law.  The issue we have here is one of financial punishment, further oppression, after a verdict of innocence, hard fought and hard won.  If it is allowed to stand, it makes a mockery of the legal system because privileged documents cannot be used in criminal proceedings.

McHUGH J:   Yes.  Well, you have to show a special leave question and the questions that you raise depend upon facts which have not been found or matters that go to discretion.

MS HADDON:   Even if the facts have not been found, this is the ultimate appeal court, your Honour, and if this Court does not uphold that privileged documents cannot be used for an improper and oppressive purpose ‑ ‑ ‑

McHUGH J:   Privileged documents have nothing to do with this case.

MS HADDON:   Well, even if you put that to the side, your Honours, we had costs of $19,313.83.  It was our lawful conduct in changing solicitors only twice that it was under attack.  However, the Crown is able to use five different counsel in these proceedings.  Each time it comes to court it is able to use different counsel.  Now, we are not saying that should not be allowed, but what we are saying is that we were cleared, we were found not guilty. 

The way in which we obtained our verdict of acquittal is now under attack.  It is said that we cannot change twice, even when the solicitors are not acting on fundamental issues, when they are not acting according to law in relation to privilege, we cannot change them, when they do not attack the fact that there is a counterfeit and duplicitous complaint, we have to stay with that solicitor.  It is the defendant’s head that is on the chopping block, not that of the Crown.  So this judgment seeks to erode the presumption of innocence, because it says you cannot change solicitors, you cannot argue legal applications ‑ ‑ ‑

McHUGH J:   It does not say any such thing.  It does not say any such thing.

MS HADDON:   That is the effect of the judgment.

McHUGH J:   It says in the circumstances of this case you were not entitled to your costs for changing solicitors.

MS HADDON:   Well, we are at the upper limit of the test, your Honour, section 5(5) of the test “special difficulty, complexity, or importance”.  If the intention of the legislature is not taken into account, that is a miscarriage of justice.  We are at the upper limit of the test, yet we are deprived of costs.

In ordinary cases where there is special difficulty but the proceedings are brought in accordance with law, in those cases costs are able to be recovered.  In the most exceptional case of injustice, even if you do not accept oppressive and foredoomed to failure, in the most exceptional instances of injustices that occurred from inception to verdict – and they are summarised in our summary of argument – all the abuses of process were put to the side.  Our perspective was not looked at to any extent in deciding the question of costs.  It must be the successful defendant whose perspective is the primary consideration, otherwise we have the erosion of the acquittal, we have the Full Court in the Western Australian Supreme Court upon – its decisions will be relied upon by other courts, that in a court of summary jurisdiction you cannot change your solicitor and you cannot argue legal applications to uphold the rule of law.  Both of them were argued ‑ ‑ ‑

McHUGH J:   Ms Haddon, the case is not authority for any such proposition.  In fact it is not an authority for any proposition at all.

MS HADDON:   That is because it does not take into account the facts and law of the case and it bears no reasonable relationship to the facts and law of the case.  That is the problem with the judgment.

McHUGH J:   Questions of costs involve exercises of discretion and, depending upon the facts and circumstances of the case, you can get different views ‑ ‑ ‑

MS HADDON:   Yes, your Honour, but ‑ ‑ ‑

McHUGH J:   ‑ ‑ ‑ and it does not mean that one view is wrong or another is right.  That is why it is so hard to appeal against a discretionary judgment.

MS HADDON:   But where the issue of privilege is not taken into account, how can that be a proper exercise of a cost discretion?  That is the perspective of the successful defendants, a matter of “special difficulty, complexity, or importance” contrary to the public interest, to allow documents subject to privilege to be used in criminal proceedings and then at the end of it to financially punish the successful defendants for doing no more than attacking the oppression of the Crown case.  That is all we did, and we were financially punished.

McHUGH J:   Yes.

MS HADDON:   On appeal the Full Court then sought to give us $2,000 more and we say the reason for that is because they are saying that we should have been found guilty after the magistrate found us innocent.  That is a corruption of principle.  It is a perverse verdict and it is a miscarriage of justice in relation to costs.  If you put the trial to the side, it is still a miscarriage of justice in relation to costs, because our perspective has not been taken into account at all.  We are the ones that have been financially penalised and the Crown’s rights are unfettered.  It has unfettered rights to bring prosecutions contrary to the public interest.  It is the defendants who bear the financial burden and the crippling burden in terms of their pocket, their reputation and their livelihood.

The Crown, on the other hand, is undeterred, unpunished and rewarded and indemnified for its wrongful conduct.  Even if you do not like the term “oppressive trial foredoomed to failure”, this trial was full of abuses of process from inception to verdict, such as the elements of the offence not in existence, not alleged.  There was a counterfeit complaint that the Crown sought to conceal from the court.  The list went on and on.  The material witnesses disappeared.  The informant was told by the magistrate that he has to be in court to give evidence, to be cross‑examined, because that is what we had asked for.  He disappeared, resigned the police force four weeks prior to trial and simply went to New Zealand.

We could not cross‑examine him in relation to the complaint that was counterfeit.  It alleged that we were the danger to the complainant’s

children when it was, in fact, my father.  We had told her, “He is the danger to your children”, and instead the Crown relied on counterfeit evidence to say that we were the danger to her children when the truth of my father’s crime was proved in the privileged documents.  How can they not be matters of “special difficulty, complexity, or importance”?  How can they not satisfy a special matter in relation to the administration of justice pursuant to the tests in this Court?

Oppressive trial foredoomed to failure was permitted to take place, the conclusion, financial punishment of a successful defendant, so financial punishment.  That is not a proper exercise of a costs discretion and the strength of the Crown case, being a relevant factor, was outlawed in Latoudis v Casey.  The Crown sought to rely, in its summary of argument, on the fact that the court was correct in finding that it was open for certain inferences to be drawn.  That is an attempt to re-litigate proceedings when the verdict of innocence is a final verdict.  That is all it can ever be.

Quoting from Rogers v The Queen (1994) 181 CLR 251 at 256 to 257:

Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal ‑ ‑ ‑

McHUGH J:   The word is “subsequent”.

MS HADDON:   Yes, they are not criminal proceedings these, they are costs

McHUGH J:   No, the word is “subsequent criminal proceedings”.

MS HADDON:   Yes.  Well, your Honour, we say ‑ ‑ ‑

McHUGH J:   It is not a question of costs in this.  Your time is up, Ms Haddon.

MS HADDON:   Yes.

McHUGH J:   Thank you.  The Court need not hear you, Mr Cock.

This application raises no question that would warrant the grant of special leave to appeal.  It concerns a costs order made by a magistrate in favour of the applicants after dismissing a charge that they had stalked a person by persistently following or telephoning that person.  The magistrate made an order for costs in favour of the applicants in the sum of $5,800 but rejected an application that they be given the full amount of their costs, amounting to $19,313‑odd.

An appeal to the Supreme Court against the costs order was dismissed by Justice Scott but a majority of the Full Court of the Supreme Court of Western Australia allowed a further appeal and increased the costs awarded to the applicants to the sum of $7,800.  The dissenting judge in the Full Court, Justice Wallwork, would have given the applicants almost the whole of their costs.

The first special leave question said to arise is whether it is a proper exercise of the cost discretion to deprive the defendant of all costs incurred where the defendant was found positively innocent, subjected to proceedings without lawful justification and the proceedings were oppressive and foredoomed to failure.  This question does not arise because its factual foundation is not present.  Neither the magistrate, nor Justice Scott in the Supreme Court, nor the Full Court made any such factual findings.  Indeed, far from the prosecution being oppressive or without foundation, it was clearly open on the evidence to find the applicants guilty, as Mr Justice Steytler, one of the majority judges in the Full Court, indicated.

We agree with his Honour that the argument that the prosecution was foredoomed to failure has no substance.  There was abundant evidence from which the magistrate could have inferred that the applicants persistently followed or telephoned the victim with intent to cause apprehension.  However, the magistrate was not prepared to draw that inference, an inference that was open to him and he acquitted the applicants.

The second special leave question alleged to arise is whether a successful defendant is entitled to recover costs incurred in changing solicitors and in unsuccessfully arguing applications in the proceedings.  This raises no special leave question.  Whether the defendant should get such costs is a matter for the discretion of the relevant judicial officer depending on the facts and circumstances of the case.  Prima facie, however, a successful defendant should not recover costs incurred for either of those reasons, although in certain circumstances it may be proper to award costs for such matters.

The third special leave question alleged to arise is whether an appellate court can deprive a successful defendant of full indemnity costs on the basis that the defendants may have been guilty of the offence that the learned magistrate had found them positively innocent of.  This question does not arise.  The Full Court made no such finding and the magistrate made no finding that they were positively innocent.  The learned magistrate said that he was not satisfied “the prosecution had proved the charge to the necessary degree”, application book page 25.  Indeed, earlier he had said in his reasons at page 24 that though the conduct with the applicants with the victim may have been unreasonable and misguided it did not mean that the only available inference able to be drawn was that they intended to cause apprehension or fear on the part of the victim.

The case raises no special leave point.  Accordingly, the application must be dismissed with costs.

AT 1.47 PM THE MATTER WAS CONCLUDED