Harvey v The Queen

[1991] HCATrans 168

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• "I

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl7 of 1991

B e t w e e n -

LEISHA TERESA HARVEY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

GAUDRON J

Harvey 1 27/6/91

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 27 JUNE 1991, AT 3.47 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, OC:  May it please the Court, I appear with

my learned friend, MRS. HERBERT, for the

applicant. (instructed by Gilshenan & Luton)

MR R. O'REGAN, OC:  May it please the Court, I appear with

my learned friend, MR P. NASE, for the respondent.

(instructed by Office of the Special Prosecutor)

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:  Your Honours, may I hand to the Court copies of

an outline of submissions accompanied by a

multi-coloured document? Could I ask Your Honours

not to trouble with the coloured document until I

come to that.

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:  Your Honours, as it apparent from our

submissions, the application relates to one short

point, and we would urge that it merits special

leave, either as a matter of general importance in

relation to the way in which criminal appeals are

conducted, or in relation to the interests of the administration of justice in the particular case.

What occurred in the particular case is this -

if I could put it shortly first and then come to

the very brief detail of it in just a moment. The

Court of Criminal Appeal looked at the matter from
the point of view obtaining, after they had quashed

convictions on a further four counts, but did not

look at the position - I will indicate what I mean

by "the position" in just a moment - as it had

appeared to the trial judge at the time when the

issue arose before him. Your Honours, could I just

say one further preliminary thing, and it is this:

we do not contend that it is inappropriate for a

Court of Criminal Appeal, in all circumstances, when considering whether there has been a

miscarriage, to look at the situation after it has

given its decision. That what the Court of

Criminal Appeal was looking at in this case was to

look at the position at the when - time at the

conclusion of the Crown case - an application was

made for a directed verdict in relation to a number

of charges. First of all, the judge held that

there should be a directed verdict of acquittal in
respect of 10 of the counts, but proceeded to allow

the remainder of the counts to go to the jury.

Now, Your Honours, could I just say this. The

applicant was charged with 27 counts of

misappropriation, contrary to section 408C of the

Criminal Code. The counts, Your Honours, are

listed on the document accompanying the outline of submissions, and the result, in respect of each of

Harvey 2 27/6/91

the counts, appears in the last column. And when I

speak of "the result", I am speaking about the

situation which obtained at the conclusion of the

trial.

Your Honours, the events which occurred are

summarized at page 32 in the reasons for judgment

of Mr Justice Thomas, and essentially what

happened - and, Your Honours, perhaps if I could

paraphrase it and take Your Honours to the coloured

document to save time - is that two counts, which
were numbers 10 and 19, were adjourned for separate

trial. So, Your Honours, 10 and 19 did not proceed

at the trial.

At the close of the Crown case there were 10

acquittals by direction and they are the counts

which are in green·.	They are numbers 1, 3 to 7, 9,
15, 16 and 21.	The jury acquitted on two counts.

They are numbers 12 and 17. They are also in

white. The jury convicted on the remaining 13

counts and they are, Your Honours, numbers 2, 8,

11, 13, 14, 18, 20, 22 to 27. Now, Your Honours,

they are the counts outlined in blue and red.

In the Court of Criminal Appeal, the appeal

was allowed in respect of four counts. They are

the ones outlined in blue: numbers 2, 8, 13 and 14.

That left, Your Honours, the ones outlined in pink.

The charges related to trips to three places:

Keppel Island: count 11; Adelaide: counts 18, 20

and 22, and Hobart: counts 23, 24, 25, 26 and 27.

If I could pause at this point, Your Honours, to

say this: that the contentions of the Crown in respect of each of those counts, the counts on

which convictions remain, was that on the three

occasions the applicant, who was a Minister of the

Crown, had utilized Crown funds dishonestly in

order to go on frolics of her own, in effect, on

trips to the three places which I mentioned.

Your Honours, as to the four counts on which

the Court of Criminal Appeal allowed the appeal,

two of them, counts 13 and 14, related to a trip,

that is, a trip in Tasmania and it was a diversion

in the course of a trip to Hobart. The trip to

Hobart, on the relevant occasion, was a trip in the course of her duties as a Minister. The allegation

was that the trip to Launceston on the way was a

diversion for purely private purposes. The jury

obviously was of the same view; the Court of

Criminal Appeal held the convictions were unsafe.

Your Honours, the third of the four counts, on

which the Court of Criminal Appeal allowed the
appeal, was count 2. It related to the hire of a

Harvey 3 27/6/91

car. The fourth, which related to a meal at a

restaurant, and that was count 8.

Now, Your Honours, the issue in question is

dealt with by Mr Justice Ambrose and Mr Justice Lee
agreed with his reasons on this point at page 120

point 9.	Your Honours, if I could indicate first
where the passage commences and finishes:	120

point 9 it starts; it concludes at 124 point 1.

Your Honours, at the bottom of page 120, His Honour

referred to the fact that the conviction on those

four counts which I have just mentioned should be

set aside. The basis in each case was that the

conviction was unsafe. His Honour then said, at

the top of the next page, that:

Subject then to the effect of the learned

trial judge's refusal to discharge the jury

after it had been directed to acquit on

10 counts of the 25 that remained -

and he then set out the numerical result, as it

were, in that paragraph. Then he went on to say,

Your Honours, that:

the jury acquitted the appellant on counts 12

and 7 -

which were, in effect, restaurant expenses:

At least it was the contention for the

appellant that it was reasonable for her in

the particular circumstances of those cases to

entertain the persons involved at Crown

expense.

then he goes on to deal with the nine counts that

remain after the Court of Criminal Appeal's

decision. He said that the Crown case was that

those counts related to essentially private holiday

expenses, and that theme is continued on the top of the next page. He then, at page 122, in the first

new paragraph, said that:

The conduct of the appellant examined

with respect to counts 13 and 14 involved
considering whether it was possible to infer

dishonesty -

in respect of -

the "side trip" to Launceston -

in effect.	Now, Your Honours will see in that
paragraph the way in which he describes it.	If I

could pause at that point to take Your Honours to

Harvey 4 27/6/91

page 109.	Your Honours will see, under the
heading:

Counts 13 and 14 -

what was involved in the allegation in respect of

that trip. Your Honours, I shall not attempt to

read it out. It goes from page 109 through to the

top of page 114. I have asked Your Honours to go

there because what that indicates is really that it

seems to have been something of the same

fundamental genre as going to other trips to other

places at government expense when there was no

entitlement to do so. Your Honours, if one comes

back to page 122, what one then sees in the last

paragraph on that page is the passage from which one starts to derive the underlying notion which

appears on the next page, about two-thirds of the

way down the page, that the nine counts, in respect
of which the conviction was not set aside, even by
the Court of Criminal Appeal, were themselves of a

separate and different class. The observation of

particular relevance commences at page 123, about

three-quarters of the way down the page, the

sentence commencing:

In my view -

and, Your Honours, the passage goes on then to

page 124, about the end of the first new paragraph.

TOOHEY J: Mr Jackson, just so that I am sure I understand

the argument that is being put. There was at the

end of the day a number of convictions which had

not been disturbed either by directed verdicts, or
by the Court of Appeal. In respect of each of

those convictions, in the view of the Court of

Criminal Appeal, there was evidence which would

warrant a finding of guilty by the jury. What is

it then that makes it unsafe for those convictions

now to stand?

MR JACKSON: Well, Your Honour, the point made is this:

the issue before the Court of Criminal Appeal was

whether there had been a miscarriage of justice at

the trial.

BRENNAN J: What had been miscarried?

MR JACKSON: Whether there had been a miscarriage of

justice, Your Honour, by allowing the case to

proceed in respect of - by allowing the case to

proceed to conviction in respect of the remaining

counts after the 10 counts had been the subject of

directed acquittals, and what was being urged upon

the Court of Criminal Appeal was that the trial

judge, at the time when he was dealing with the

Harvey 27/6/91

question whether the case should proceed further,

should have taken into account the fact that there

had been the 10 acquittals by direction and not

have let the case go to the jury.

BRENNAN J:  What is the connection between the 10 in which

there were directed verdicts and not allowing the

rest to go to the jury?

MR JACKSON: Because, Your Honour, of the evidence

which - the charges were of, if I can put it

broadly, a generally similar nature and what was
suggested was that the jury having had such a mass
of evidence before them on a large number of
charges, some of which would indicate, perhaps,

extravagance, to put it in one way, but then at the

end of the day, when the matter was about to go to

the jury, one had then a position that the judge

said, "There is not sufficient evidence, it would

be unsafe to convict in respect of 10 of those

charges", yet the jury was in a position where it
had had before it evidence concerning those 10

charges as well as the other ones on which it did

convict.

BRENNAN J: But is that not the consequence of every trial

of multiple counts?

MR JACKSON:  It is something that occurs where one has

multiple counts in respect of some of which there

is a directed verdict of acquittal.	Your Honour, I
entirely accept that.	The question however was

whether, in the particular case, the issue should
have been allowed to go to the jury, to put it

shortly.

GAUDRON J:  What was it that should have taken it away from

the jury; what feature?

MR JACKSON:  The judge was entitled to say, in our

submission, "In view of the fact that I have ruled

on 10 of these charges, and in view of the fact	there is no evidence to go to the jury, in effect,	that there has been evidence adduced going to those
charges and going to other charges and because of
the difficulty, in the light of multiplicity of
charges" - of the jury being able to separate one
out_ from the other, then I, in effect, put the
Crown in the position where the Crown has to choose
whether to seek to ask for the return of the
indictment in respect of the remaining charges, and
perhaps proceed again later on the remaining
charges, in separate proceedings, or else,
Your Honour, to direct the jury that in those
circumstances it would be unsafe to convict.

Harvey 6 27/6/91

TOOHEY J:  If the judge had been able to predict the outcome

of an appeal, as was taken in this case, he would

have said to himself, "Well, now there are four

matters in respect of which the Court of Criminal

Appeal has said that those convictions cannot

stand. There are a number of other convictions in

respect of which the Court of Criminal Appeal has

said there is evidence to warrant a conviction".

Now, why should he then have withheld those

particular charges from the jury?

MR JACKSON: Well, Your Honour, I suppose the answer is

circular in a way, because what the Court of

Criminal Appeal had to consider in the end was whether the nine convictions which remained in

consequence of its decision, were convictions in

respect of which there had been a miscarriage.

Now, Your Honour, the Court of Criminal Appeal

allowed the nine convictions to remain but in

circumstances where, in our submission, they did

not apply the correct test, the correct test being

to look at the situation as it had appeared before
the primary judge, and that is not answered, with
respect, simply by saying, "Well there was evidence

to go to the jury in respect of each of those

charges", Your Honours, one accepts that, but the

question is whether, in the particular

circumstances, the charges should have been

permitted, as it were, to go to the jury, bearing

in mind the fact that there had been a large number

of other charges. Your Honours, one has to bear in

mind too that in fact the result of the

proceedings, even on the. basis adopted by the Court

of Criminal Appeal, was that on approximately

one-third of the charges the Court of Criminal

Appeal took the view that the convictions were

unsafe.

TOOHEY J: There is no room for dissection, is there? On

your argument, the trial judge should have withheld

all remaining charges from the jury.

MR JACKSON:  Yes. Your Honour, the other way to do it, of

course, was to invite the Crown to -

GAUDRON J:  Why, because there was a risk of what?

MR JACKSON: .. Because it would be unsafe to convict,

Your Honour, in the light of the course that had

been followed of having so many of the charges in

a - - -

GAUDRON J: But why would it be unsafe, because the jury

might proceed to a verdict by reference to

inadmissible evidence?

Harvey 7 27/6/91

MR JACKSON: Inadmissible evidence, Your Honour, or coloured

by what they had heard - - -

GAUDRON J: Well then, that very much depends upon the

nature of the summing up, to a large extent. That

is a matter that a trial judge might fairly think,

and properly and rightly think, could be protected

against in the course of summing up.

MR JACKSON:  What Your Honour says is perfectly correct, and

Your Honour, the test - in order to determine

whether that had or had not happened, one would

have to look at, in our submission, speaking of the

point of view of the Court of Criminal Appeal, the
position obtaining at the conclusion of the trial

but bearing in mind that the issue to be considered
was an issue which arose, in effect, as at the end
of the Crown case, and for that purpose the Court
of Criminal Appeal needed to put itself in the
position of the judge at that time and that, with
respect, is what the Court of Criminal Appeal did

not do.

BRENNAN J:  And having put itself in the position of the

Court of Criminal Appeal at that time, ask itself

what question?

MR JACKSON:  Ask itself, Your Honour, whether, in the light

of the fact that the judge was satisfied that in

respect of the evidence, dissected as it were, in
respect of the 10 charges on which he had directed
verdict of acquittal - one could then say that it
would be safe to allow the case to proceed further
to the jury and for the jury to be put in a

position of being able to convict, bearing in mind

the fact that so much evidence had been adduced on

the various charges. Now, it may be, Your Honours,

that the Court of Criminal Appeal, if it had asked

itself that question, would have come to the view

that what the trial judge did could not be the

subject of ultimate complaint. But that was the

question and that question was the one the court did not ask itself.

BRENNAN J: But if the court asked itself the relevant

question from a standpoint of the 10 acquittals by

direction and the four acquittals on appeal, the

argument is a fortiori, is it not?

MR JACKSON:  Your Honour, if one looked at it as a pure

mathematical exercise, that would be correct,

however, the way in which the court approached the

question was not to look at it - it did not look at

it that way, the way in which Your Honour has just

put it to me, but what the court seemed to say, and

it comes out fairly clearly from the passage in

Mr Justice Lee's reasons for judgment to which I

Harvey 27/6/91

will come in just a moment - what the court seems

to have said is that there is a logicality about

what happened because the nine counts in respect of

which the conviction remains are all counts

relating to the three trips: Keppel Island and so

on - Keppel Island, Adelaide and Hobart. But, of

course, the position at the time when the trial

judge was making a decision was not so, because the

counts which remained at that point, in addition to

being counts - four more - were however counts that
also included, for example, the Launceston trip,

the hire of the car, and did not have the symmetry

that the counts have, as it were, after the

decision of the Court of Criminal Appeal.

GAUDRON J: But even so, Mr Jackson, it is usually said that

unknowns, but the trial judge asked himself the

the trial judge has a discretion in these matters.

right question, did he not?

MR JACKSON: Well yes, Your Honour, he asked himself the

right question - - -

GAUDRON J: Yes, and it was a question which he might well

answer by saying, "I can cure any possible

prejudice by emphasizing that they must act on
evidence admissible in respect of particular

counts."?

MR JACKSON:  Your Honour, it was a theoretical possibility,

if I can put it that way, but, Your Honour, as with

all discretions, it was one, the exercise of which

was capable of being attacked and, Your Honour,

capable of being - -. -

GAUDRON J: All right, but it is capable of being attacked

on very, very limited grounds.

MR JACKSON: Well, of course, Your Honour, limited grounds,

generally speaking, I accept that, but - - -

GAUDRON J: But your argument thus far does not disclose any

basis for attacking what the trial judge did.

MR JACKSON:  I am sorry. Perhaps I have been putting it too

shortly. What I was seeking to suggest in that

regard was that if one were to look at the course
of the evidence that had occurred in relation to
the 10 charges, if one were to look at the nature
of the contentions advanced one side or another,
then one could see that, in the particular

circumstances, the only way in which the discretion

could properly have been exercised would have been

not to permit the case to go forward. Now,

Your Honour, that is what one, I suppose, commonly

enough describes as a case where the person having

Harvey 9 27/6/91

the discretion identifies the correct principle,

takes into account the relevant matters, and so

on.

GAUDRON J: But it is manifestly unreasonable in the

circumstances.	Is that the basis on which you put
it?

MR JACKSON:  Yes. Now, Your Honour, perhaps the Court of

Criminal Appeal might - - -

GAUDRON J:  Why is it not manifestly unreasonable in every case where there is a joinder of counts?

MR JACKSON: Well, Your Honour, it must depend on the

circumstances. One accepts that, of course, but it is possible that the Court of Criminal Appeal would have taken a different view, but the Court of

Criminal Appeal did not consider that question,

according to the right test, in our submission.

Your Honours, could I just give a reference to

Mr Justice Lee, on this point. It is as

page 171 point 9, going through to page 173

point 5 and, in particular, page 172, from about

half-way down the page. Now, Your Honours, what we

would submit in that regard is the appropriate

course would be for the Court to decide whether the
Court of Criminal Appeal had adopted the right

test, or the wrong test. If it were satisfied the

court had adopted the wrong test then, no doubt,

the matter would go back to the Court of Criminal

Appeal. I say that, Your Honour, because I can see

the draft notice of appeal is perhaps a little

greedy in that regard. Your Honour, those are our

submissions.

BRENNAN J:	The Court will adjourn briefly to consider the course it should take.
AT 4.19 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.25 PM:

BRENNAN J:  We need not trouble you, Mr O'Regan.

MR O'REGAN: If Your Honour pleases.

BRENNAN J: There was no error of principle on the part of

the trial judge in allowing the case to go to the

Harvey 10 27/6/91

jury after the trial judge had directed acquittal

on 10 of the counts in the indictment. Nothing on

this aspect of the trial requires consideration by

this Court. There was thus no miscarriage of

justice at the trial and the order of the Court of

Criminal Appeal dismissing the appeal against the

applicant's convictions on the counts relating to

Keppel Island, Adelaide and Hobart is not open to

doubt. Accordingly, special leave to appeal will

be refused.

AT 4.26 PM THE MATTER WAS ADJOURNED SINE DIE

Harvey 11 27/6/91