Isherwood v The Queen

[2005] HCATrans 1032

[2005] HCATrans 1032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B72 of 2005

B e t w e e n -

RONALD KEITH ISHERWOOD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 DECEMBER 2005, AT 11.17 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR P.J. DAVIS, SC and MR P. KULEVSKI, for the applicant.  (instructed by Robertson O’Gorman)

MR A.J. RAFTER, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Commonwealth))

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  We seek by this application to raise a point concerning the fundamental importance for fair trial of the examination under the criminal appeals statute of the notion of miscarriage of justice being conducted by recognising that one does not have a fair trial in this country unless the trial is conducted in accordance with law and, in particular, with positive enactment, in this case section 15 of the Evidence Act. 

This is not a case where the prohibition upon which we rely, and which was adjudicated in the Court of Appeal against us, this is not a case where the prohibition in section 15 was in any sense flexible or discretionary.  It was a rule pronounced by Parliament for the regulation of the conduct of a criminal trial, including the trial of people against whom the evidence may well have been very considerable.  The section 15 prohibition was precisely in order to ensure that that evidence was at no point contaminated by material which, by Parliament’s judgment, largely enshrining what the judges had achieved in the decades beforehand, should not be received by a jury considering the question of guilt of the offence charged.

GLEESON CJ:   Where do we find the statute?

MR WALKER:   The statute has relevantly been extracted and quoted on pages 118 and 119 of the application book.  It is section 15(2) with which this application is chiefly concerned.  In subsection (2) it is clear that there are words of direct, plain and unqualified prohibition:

the person shall not be asked, and if asked shall not be required to answer, any question tending to show . . . unless –

(a), (b), (c), (d).  In our submission, none of (a), (b), (c), or (d) could arguably apply in this case.

GLEESON CJ:   Now, the question is the question that we find on page 100, is it?

MR WALKER:   Yes.

GLEESON CJ:   The question, “Okay.  Had you made your application?”

MR WALKER:   That is the principal question to which the prohibition applies.  It must be read in context of course.

GLEESON CJ:   Yes, but the prohibition fastens onto a question, and I just want to identify the question that is prohibited.

MR WALKER:   It does, but if I could perhaps use ‑ ‑ ‑

GLEESON CJ:   Are there are any other questions we should look at except that one?

MR WALKER:   There are other questions and answers to which you need to look at because of the context it supplies.  That is the pivotal question.  I wonder if I could use pages 3, 4 and 5 of the application book because they contain more than is extracted in Justice Jerrard’s reasons.  Before going to those pages, I had better put it in the relevant context in order to focus on the prohibition having been breached, as we submit it was, under section 15(2). 

At page 10 and 11 of application book there are contained the extracts from the telephone intercepts which formed such an important part of the Crown case against my client – the case brought against my client in company with five others.  One of those five pleaded guilty.  One of the four remaining had a quite decidedly different case in relation to greater remoteness of connection with the boxes of imports than the others.  But the three others who pleaded not guilty and went to trial were acquitted notwithstanding their defence was the same alternative plan to import gemstones, not lawfully, as was the heart of my client’s defence.  My client was convicted; those three were acquitted.  Their defence was similar in that regard. 

So that in terms of chance of acquittal and overall credibility, in our submission, prohibitions like section 15 loomed very large and become more, not less, important.  As the Crown case, it might be thought to become more formidable.  At page 10 you will see the loan to which your Honours will have seen reference being raised as a possibility in line 50, “forty for three weeks”, and at the top of page 11, what might be called the hypothecation proposed, namely:

a cheque or I give you half a box

M       Okay

R        ‘cause if the box comes I’ll give you half a box right

M       Okay

R        if the box don’t come I give you a cheque for forty

M       Oh yeah

R        So it’s a win win situation

. . . 

R        Mm because um it’s a 100 per cent guarantee

So ‑ ‑ ‑

GLEESON CJ:   What does that mean, “if the box comes”?

MR WALKER:   On my client’s case, as explained in the relevant part of the evidence, that meant if the authorities permitted him and his associates to open and start trading a legal brothel.  May I then go to the way in which, it being of course relevant, that was the subject of inquiry ‑ ‑ ‑

GLEESON CJ:   Sorry, could I just ask does that mean for that part of the hypothecation to work the box was going to have to come within three weeks?

MR WALKER:   Yes, your Honour – well, no, I should not have said yes.  Whether or not there is a prohibition, certainly one of not which I am aware of making contracts for the future disposition of interests in legal brothels not yet permitted or operating, clearly enough giving you half a box might include undertaking between the people in question that they would have half an interest in the brothel when it was open.  It does not necessarily mean up with the registration certificate and trading within three weeks, and those commercial details were not perhaps fully explored in the evidence.

Page 3 commences the passage of cross‑examination.  Now, the fact that this was relevant cross‑examination again heightens, rather than reduces, the importance of the prohibition in section 15.  There are suggestions, both in the trial judge’s ruling against discharge by reason of this passage and in the Court of Appeal, that relevance, including relevance in testing something introduced by the accused in his own defence, somehow overcame the way in which section 15 might otherwise apply.  That is a very serious error. 

At page 3 one sees that the evidence‑in‑chief is picked up at about line 30 that this reference was to half a massage parlour.  Why was it relevant?  Because there were metal boxes which had originally included the intercepted drug, which the Crown, obviously, was suggesting to the jury was a more obvious understanding of the expression “box”, than the cant expression that my client was putting to the court; namely, half a massage parlour.  A box is a massage parlour. 

Now, at about line 40, you have the linguistic switch that the respondent’s written submissions tries to make something of but, in our submission, not in a way which assists the respondent’s position.  You see:

I have had massage parlours and I was about to open another one now, yes.

Then two lines down:

we were in the process of trying to open a massage parlour.

Requirements of law were introduced by the Crown at that point.  Line 48:

This is a legal one, I assume, you’re talking about?--  They had just been legalised.

Then at the foot of the page, again the Crown returns to that:

a legal one as opposed to the illegal ones?--

Emphasis being added in the context leading up to the relevant questions on the fact that there are, presumably, criteria as the jury would understand distinguishing between a legal and an illegal brothel.  That is, after all, the concept of legal or illegal, that it has certain characteristics.  At the top of page 4 of the application book:

There are steps to be gone through, are there not?--

The jury would clearly understand that as meaning the kind of steps necessary to be legal rather than illegal.

Yes, sir.  You have to make –

language of obligation, legality –

an application to council, yes.

Had you done that?--  We had started that – we had started –

So the plural for a group of would-be investors in the brothel is being used in the answer.

What does that mean?--

A question which is asked by Crown knowing, of course, of the prior convictions of my client – he is coming close to the question – and during the answer, which may or may not be something described as non‑responsive by the Court of Appeal – certainly the next one is – during the answer, a very open‑ended question, “What does that mean?” – we submit everything that follows is entirely responsive – there is reference to, about line 17, paperwork:

We had already started.  We already had the paperwork sent to us.  As you are aware, if you have criminal convictions you can’t open a massage parlour in this State and that’s what the steps were taking, yes, we were starting to take steps.

Against that immediate context the question:

Okay.  Had you made your application?--

GLEESON CJ:   That is the question you say is prohibited by the statute?

MR WALKER:   In that context, yes.

GLEESON CJ:   Because your client had in effect immunised himself against the asking of that question by volunteering the information that you cannot get a massage parlour if you have had criminal convictions.

MR WALKER:   No, not immunised himself – had raised a context which required the Crown thereafter to steer clear of questions tending to suggest that the person being questioned, the accused, whose rights are governed by section 15(2), fell into a class different from others by reason of convictions, and that was never asking too much. 

Section 15(2) could of course be regarded as an immunity without doing violence to its character.  If it be an immunity, then in that sense, and only in that sense, the context to which I have already gone did immunise in the way the Chief Justice has asked me about, but certainly not in what might be called the game-playing way that Justice Jerrard seems to be referring to in the critical part of his reasoning which culminated at the top of page 102 of the application book in paragraph 16.

GLEESON CJ:   The answer to what you say is the offending question was, “No”.

MR WALKER:   That was one way it could have been answered, but to say that that was a non-responsive answer, in our submission, is to introduce a gloss into section 15 which is not justified by the text.  A question which asks, when the matter has been raised concerning legal/illegal criteria distinguishing and one of those criteria being convictions, the Crown obviously knowing of the convictions, when the question is repeated – because it has be remembered that the question I have identified in colloquy with the Chief Justice is really a repetition of the one at line 7:

You have to make an application to council, yes.

Had you done that?--

The context changed.  The repetition of the question, which itself has significance because there had been an answer in two parts:

Had you done that?--

Answer.

What does that mean?--

Longer answer.  Repeated:

Okay.  Had you made your application?--

Return to that question.

KIRBY J:   I am surprised you are concentrating on this because, as I understood it, the chief point you are making is in complaint of the question on page 6 at 50.

MR WALKER:   No, that was a matter below.

KIRBY J:   You are not complaining about that question at all?

MR WALKER:   “[O]ne of your criminal cohorts” and “half a box of cocaine” does not fit section 15 because under subsection (1) he can of course be cross-examined about committing the offence charged.  It is not a subsection (2) point.

KIRBY J:   So your complaint is about the Crown’s question that did not pursue in terms the words “criminal convictions” which your client had himself introduced into the dialogue.

MR WALKER:   We had not introduced our criminal convictions ‑ ‑ ‑

KIRBY J:   No, your client did, “if you have criminal convictions”.  Why else would he say that?

MR WALKER:   We had introduced the criteria which were in question but section 15 nowhere says that there can be, as it were, action by an accused that removes the prohibition imposed by Parliament.  This is a contest between the representative of the Crown, the prosecutor, and the accused.  We know under section 15(3) that Parliament has decided even when the exceptions under subsection (2) are available, as to the first three of those four exceptions, even then, the Crown needs permission to ask a question.  This is not, with respect, a game in any evenly matched sense. 

For those reasons, this case does raise an important question as to how, for the miscarriage of justice criterion or concept in the criminal appeal statute, one is to approach the matter where there has been a breach of a positively enacted rule for the conduct of trials which, in our submission, must provide the content from time to time of what is a proper carriage of justice and what is a miscarriage of justice, leaving to a later conceptual step, of course, the criminal appeal statute proviso.  But section 15 is a prohibition so specific and so important, in our submission, as to answer the description in Wilde’s Case of something to which the proviso could rarely have ever applied.

KIRBY J:   It sounds very much like a bootstraps argument though because it is your client who introduces criminal convictions into the debate.

MR WALKER:   He does not introduce his.

KIRBY J:   Well ‑ ‑ ‑

MR WALKER:   He does not introduce his.

KIRBY J:   ‑ ‑ ‑ “if you have” – “you” in the English language can mean “one”, “I” and one interpretation is that that is what he is referring to.  He is concerned about his own predicament.

MR WALKER:   May I try to persuade your Honour to the contrary as follows?  In about line 17 or so, using the left‑hand numbers, “We had already started.”  So this is a narrative in which he is saying “were proceeding” – not “We perceived ourselves to be blocked from proceeding”, “We are proceeding.  Believe me, we were going to get it”.  You see that at two questions down:

At this stage we were still going through it –

So he had not introduced this concept that we were blocked, but what he had introduced the concept of was that there were criteria, but that had already been set contextually by the notion of legal or illegal which the Crown had introduced.

GLEESON CJ:   Are the criminal convictions to which your client was referring that referred to on page 81, line 15?

MR WALKER:   Yes, your Honour.  For those reasons, in answer to Justice Kirby, this is certainly not a case where anything in the way of what would be a rather remarkable implicit waiver of a statutory regulation of a criminal trial had appeared.

KIRBY J:   I am not necessarily saying it is a waiver, but it was your client who introduced this in a very important interchange in which it was entirely appropriate, so far as the statute did not forbid it, for the prosecutor to test the proposition and explanation that he was advancing.

MR WALKER:   But our case is this – and that is what makes this case a good vehicle for special leave – the accused must be able to give evidence knowing that section 15 will be applied and that it will not be somehow forgiven of relaxation or permitted of relaxation because one introduces a topic in which in lay, non-legal terms criminal convictions may well be relevant to an assessment of credibility.  Section 15 is there to keep out what Jeremy Benthem would regard as very relevant material.  For those reasons, it is very much a definition of what a fair trial is and thus feeds directly into the appellate miscarriage of justice.

There is, in our submission, an inadequate recognition of that in the way in which in the Court of Appeal my client is held, as it were, through the conduct of his defence, responsible for the plight that occurs page 4 of the application book.  But he is not responsible for it.  He is entitled to give evidence in his defence knowing that there will be a limit on the Crown by section 15.  Did he really introduce the notion of conviction?  The Crown introduced this distinction, legal/illegal.  It is not to be supposed the Crown did not know that prior convictions were relevant and it is not to be supposed that the Crown did not know that this witness had prior convictions.

So, for those reasons, in our submission, when you look at the whole of the context, including the Crown returning to the matter – see page 4,

line 44, “But pretty strictly vetted”, that is the applications – this it the Crown dwelling on, in order to make good the notion that it was unlikely you were ever going to get such a thing, so unlikely that this is all just a cock and bull story.  It is relevant, we stress, but being done by pushing, pushing so as to ask questions which, if truthfully answered, are going to say, “Well, I could not make the application; that was for others”.

KIRBY J:   Correct me if I am wrong, but did not the trial judge give you a an opportunity that a direction be given to the jury that would address what you are saying is the complaint?

MR WALKER:   She did and, in our submission, the response by my learned predecessor in brief, page 14 of the application book at line 12, is both predictable and sensible, with great respect:

it is best if things are just not mentioned again.

There had been a discharge application.  It cannot weigh against us and should not have weighed against us on a criminal appeal that having lost a discharge application that we were meant then to devise a direction by which, in front of the jury, the judge would return to the topic that we said had been introduced already too much to permit the trial to go ahead at all.  So that is no answer, and the respondent’s reliance on that, in our submission, is as unconvincing as their reliance towards the end of their written submission:  see, for example, 3.9.3, 3.9.4 at page 127 and 3.9.2 on page 126 on what the jury may have already been speculating about my client’s character.

GLEESON CJ:   We do not need to hear you, Mr Rafter.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter.  The application is dismissed.

AT 11.38 AM THE MATTER WAS CONCLUDED