Higgins v The Queen

[1994] HCATrans 379

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M26 of 1994

B e t w e e n -

PAUL WILLIAM HIGGINS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

Higgins 1 10/6/94

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 1994, AT 12.08 PM

Copyright in the High Court of Australia

MR D.J. ROSS, OC:  May it please the Court, I appear with my

learned friend, MR P.G. PRIEST, for the applicant.

(instructed by the Legal Aid Commission (Victoria))

MR R.F. REDLICH, OC:  May it please the Court, I appear with

my learned friend, MR J.W. RAPKE, for the

respondent. (instructed by the Director of Public

Prosecutions (Victoria))

MASON CJ:	Mr Ross.
MR ROSS:	If the Court please, I do not want to proceed with

ground E, that is the corroboration ground. We say

that draft grounds A and B give this case features

which are shared by an increasing number of

cases -

MASON CJ: Which two grounds?

MR ROSS:  Grounds A and B. Two recent cases reached the

Victorian Court of Criminal Appeal: one was this

case, and another was Wilson and Grimwade. Those

cases had in common the length of the case. There was another in Victoria that finished last year, a conspiracy case, a cocaine importation, that lasted

nearly a year, that is excluding pre-trial

arguments, and in that case there was an acquittal
so, of course, no appeal court will come to

consider the matter.

It would seem that in Victoria at the moment

there is at least one case at any given time, and

generally in the county court, that seems to be

given the title "a super trial", generally a

conspiracy trial. Wilson and Grimwade was the exception because there were a large number of substantive counts in that.

MASON CJ: What do we draw from that?

MR ROSS:  What we say is that this seems to be a trend that

is existing, Your Honour, and it has unfortunate

side effects.

MASON CJ:  It may have something to do with the way cases

are presented in Victoria by counsel.

MR ROSS:  Yes, it does, but we say it seems to be Australia

wide. The reference that was made by the court

below to the other cases, for instance the case in

Queensland, the Bribie Island Land case, I think it

was, that went for two years, and then the jury was

discharged without verdict because a juror fell

down a hole during a view. There was, I think, the

Milperra bike case, that lasted·round about a year.

Large cases.

Higgins 2 10/6/94

DAWSON J:  No doubt these things should be avoided if they

can be avoided and there is a responsibility,

particularly on the prosecution, to see if they

cannot perform their function in the most efficient

way, but the question in the end is, in any one of

these cases, as to whether there was any

miscarriage of justice. That is all we can be concerned with.

MR ROSS:  That is so, Your Honour, but we say when you get a

trial of the dimensions of this case and the

dimensions of Wilson and Grimwade that the starting

assumption is that a trial of this sort of length

is going to result in a miscarriage and if we -

MASON CJ:  How can you have an assumption or presumption

like that?

MR ROSS:  I suppose the court below put it correctly in a

way that they say that nothing can be shown by an

accused to say that a trial that went this length

showed that the jury could not approach its task

properly. Likewise, nothing could be shown to the

contrary. Nothing could be shown that they did.

The fact that they came to a verdict after that

length of time, we say, does not show of itself

that the trial was regular.

What we put to the court below was this: if

the court below, we said, is of opinion that length

alone is not enough to show that the verdict

failed, then all we have to go on to show is one

error, that is one error over the top of the length

of the trial because, in an ordinary trial of
ordinary length, that is all you would have to

show. We were concerned by the proposition that

seemed to be put - or seemed to be the basis of the

approach of the court below - that is, the longer

the trial, the less significant did any given error

assume. So we say that - I do not know whether the

right logical expression is to say, "That begs the

question", we could then say, if a trial ran longer

than, say, Grimwade and Wilson, it could have more

errors, more errors than Grimwade and Wilson had,

and if it ran for ten years, it could have five

times as many errors. And still they would not

result in having sufficient significance to result
in a miscarriage.

We say the sad part about all of this is that in the administration of the criminal law there is

a wastage of resources that ought not to be

tolerated unless there is some special reason to do

it.

Higgins	10/6/94
MASON CJ:	What are you now saying, that the conspiracy

count should not have been included in the

indictment?

MR ROSS:  Yes, should not have been a conspiracy count at

any event. There could have been substantive

counts very easily, and this was always said, from

the time that the trial started and through the

court below. For instance, there is a charge, a

common law charge of bribery of a public official,

and the common law rules seem to comprehend that a

constable falls into that category. It is a

misdemeanour and it carries life imprisonment.

MASON CJ:  Maybe that charge could have been preferred but

it was not.

MR ROSS:  That is right, it was not. So what we had, we

say, Your Honour, was not just a six count

presentment but we had a rolled-up plea, a rolled-

up conspiracy being count 1, a quite - - -

DAWSON J: What do you mean by "rolled-up conspiracy"?

MR ROSS:  The conspiracy that was pleaded as count 1 was

supposed to comprehend the very start of the

conspiracy and the very end of the conspiracy.

DAWSON J: That never went to the jury?

MR ROSS:  No, it never went to the jury, but that was the

original idea. Count 2 stood on its own because

that was supposed to be a conspiracy, as you know,

to frame a man called Slater and, as it turned out,
the common thread behind it all, that is the

protection and encouragement of the witness Lamb's

empire, did not apply to count 2 because when Lamb

gave evidence he denied any knowledge of having

anything ·to do with it.

Count 3 was, if you like, the starting point of the first conspiracy - - -

MASON CJ:  I would not waste your time telling us what the

other counts are because we are familiar with them,

Mr Ross. You had better make more valuable use of

your time, I suggest.

MR ROSS:  I should say this, that each conspiracy being

counts 3, 4, 5 and 6, each conspiracy was quite

different in character and what we say about that

is that if that happens, and count 1 is taken away,

the reason why count 1 was taken away, we say, was

it ceased to have any effect.	It was put in to
begin with to be an overarching conspiracy.	The

reason why it could not prevail was it ceased to be

an overarching conspiracy because the different

Higgins 4 10/6/94

conspiracies and the different counts had assumed

such different characters and had such great gaps

in time between each one, so much so that we say it

is impossible to maintain, as the Crown does here

and in the court below, that you use a case like

Verrier to say it is only in the use of the big conspiracy trial that you can show this form of

criminality. We say it was almost inevitable in

the circumstances of this case that it was going to

run the way it did, have the effect that it did.

We put in the outline of submissions,

Your Honours, the fact that a different test seemed

to be adopted as to length in Wilson and Grimwade

and in this case. We say that the test in Wilson
and Grimwade, if it be the right one, seems to

assume a sort of reasonable man test which might or

might not be right, but certainly was not the test

that was used in Higgins.

The further matter on this conspiracy question

is that this Court, particularly in the cases of

Hoar and Gerakiteys, said that special care must be

used if prosecutors are going to lay conspiracy

counts. They cannot make them so wide or so

amorphous as to make it difficult for someone to

defend himself. We say that this is a prototype case where those warnings have been not regarded

and certainly not stamped on by the court below.

As to the non-disclosure aspect, we say that that ties in with the question of conspiracy

because the amount of material that the Crown had

amassed was so large that almost from the very

beginning it became clear that there were going to

be fine judgments that would have to be made by the

prosecutors as to what documents they would hand

over and what documents they would not. As we

know, after the trial had been going nearly a year

and the documents were handed over, the following

things emerged: that there were some witnesses who	had given evidence who could have given evidence,	had the defence known about it, that was entirely
inconsistent with the Crown thesis; that is with
the genesis of the Crown case.

The Crown thesis was that because Lamb could

not get set with some protection arrangement in

Melbourne in 1978, he arranged Sydney connections

and came back to Melbourne that way. In fact there

was evidence that was in existence that the Crown

knew about that Lamb was paying police substantial

amounts of money before 1978 and providing sexual

favours for them too. That was not disclosed.

There were a variety of matters that were not

disclosed of a more minor nature, of a more

character nature and matters, of course, that were

Higgins 5 10/6/94

not disclosed whereby witnesses were allowed to

say, when being cross-examined, "I hardly saw the

investigating police. I hardly saw the

prosecutors", when documents that the prosecutors

had in their possession showed that that just was
not true.

Now, they might have been small things, but

the defence was then faced with this difficult
proposition. Having made a losing application that
the jury be discharged, they then had to make this
difficult choice: do we ask for the witnesses to be

recalled or do we not? As they say, damned if you

do and damned if you do not, they could not not

recall them, but they knew if they did have them

recalled, first of all they would have to put the

evidence that they were going to impugn in context,

then try and get it contradicted, and then run the

risk of the Crown re-examining.

I do not know that it takes any authority from

a court to say that an accused ought to be

entitled, before the case against him starts, to

plan the case, to plan his cross-examination, and

to plan his tactics. I believe that I have seen a

proposition to that effect in some case from this

Court that has been put forth by His Honour

Mr Justice Wilson.	In the course of six months or
so I have not been able to find it.	In any event,

what we would submit is it does not take High Court

authority for that proposition; that is ordinary

fairness and seems to accord with the spirit of the

administration of criminal trials that was put

forth in this Court by cases such as King's case,

that the defence should know exactly how the Crown

is going to put its case so it can plan its defence

accordingly.

Your Honours, we say that you can look at this

case this way: it is both ordinary and special.	It
is ordinary in the sense that these sorts of

trials, we say, are continuing in Victoria and, we

suspect, elsewhere, although the detail of it from

other States we do not know, and it will continue

that way unless it is stopped.

Second of all, they are conspiracy charges

and, as in this case, they are conspiracies of a

disparate nature, disparate in character and

separated in time. That can be shown, we say, by

the fact that the overarching conspiracy,

originally intended to cover all aspects of it, had

to be withdrawn because it ceased to apply.

We say it is inevitable in this sort of a

case - and this does not make it much different

from the ordinary run of conspiracy cases of this

Higgins 6 10/6/94

dimension - that there is not going to be full

disclosure. There is a difficulty about that from

any accused's point of view, as all the authorities
in England in recent times, Berry and the other
cases, mainly coming from the Court of Appeal,

point out, always a difficulty.

If Your Honours please, the last ground that I

wanted to argue was the question of the onus of

proof.	We refer to that in the summary of our
argument.	Your Honours would have read that
and -

DAWSON J:  You mean standard of proof.

MR ROSS: Sorry, standard of proof, yes. That is a clear

point. The authorities are all one way. The

standard of proof cannot be qualified.	We say it
was.	The court below said that it is all right to

do it, to refer to other aspects of things to

these matters - - -

MASON CJ: But the trial judge responded to a complaint	about this.
MR ROSS:	He did.

MASON CJ: And re-emphasized the need for satisfaction

beyond reasonable doubt.

MR ROSS:  We say he got it wrong, Your Honour. We say he

got it wrong because, in trying to fix it up - it

is referred to at page 166 of the application

book - if you see the quotation there you find

when he tried to fix it up in fact he aggravated

the error.

The court below sought to say that if you are dealing with cases like Shepherd's case, and you

are going to go into questions of essential

intermediate facts, then while it is that the

essential intermediate fact - and I think

Their Honours relied on the judgment of Your Honour

Justice Dawson in Shepherd's case - that that had to be proved beyond reasonable doubt, in fact

His Honour dealt with other matters - His Honour

dealt with the role and the number of the
co-conspirators and we say that there comes a time,
as we put to the court below, when the reduction of
the number of conspirators and the proof of the
participation of the number of conspirators must
get to a stage when, if it is reduced sufficiently,

the conspiracy loses - any conspiracy loses its

essential character.

So when dealing with those sorts of matters a

trial judge will have to say that the proof of the

Higgins 10/6/94

participation of co-conspirators is something that

the Crown has to prove beyond reasonable doubt.	It
is one of those matters, if you like, is an
essential intermediate fact. If he does not do

that, then we say he is in error. What the
conclusion of the court below was, His Honour threw

out his charge, made repeated inaccurate references

to the onus and standard of proof. We do not

contest that, he did, he said it often enough, but

we say if he gets it wrong enough, like we say he

did, it gets to the stage where it cannot be

repaired. If the Court pleases.

MASON CJ:  Thank you, Mr Ross. The Court need not trouble

you, Mr Redlich.

The Court is not persuaded that there was any

error of principle on the part of the Court of

Criminal Appeal by reason of the matters presented

in support of this application by counsel for the applicant. The application is therefore refused.

MR ROSS: If the Court pleases.

AT 12.29 PM THE MATTER WAS ADJOURNED SINE DIE

Higgins 10/6/94