Jobling v The Queen

[2012] HCATrans 26

[2012] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B32 of 2011

B e t w e e n -

SCOTT ANDREW JOBLING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 10 FEBRUARY 2012, AT 1.04 PM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC:   May it please the Court, I appear for the applicants. (instructed by Legal Aid Queensland). 

MR A.W. MOYNIHAN, SC:   May it please the Court, I appear with my learned friend, MR D. BALIC, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL J:   Yes, thank you, Mr Glynn.

MR GLYNN:   Your Honours, the incontrovertibility is at least in one significant aspect directed to the protection of the integrity of the court process, and in particular to the finality of a determination which has not been upset by later order of the court.  That is spelt out in the judgment of Justices Gaudron and Gummow in Carroll at paragraph 86 where they identify what they describe as:

matters fundamental to the structure and operation of the legal system and to the nature of judicial power.

Then three are essentially focused on the concept of finality and one is focused on the interests of the individual.

BELL J:   Can I take up a matter with you arising out of paragraph 86 in Carroll and it is this.  The Court in discussing the principles that undergird the notion of incontrovertibility in that passage is doing so in the context of finality between parties.  Here one has the conclusion of a proceeding between the Crown and Mr Hinschen resulting in a verdict and proceedings between the Crown and your client.  Now, considerations of finality and of oppression in the sense of being twice vexed for the same cause do not seem to me to be so apt when one is not dealing with the same parties.

MR GLYNN:   Your Honour, I have no difficulty in accepting that this is an extension of what has been established in prior authority.

KIEFEL J:   Your case is really about the potential for abuse of process where the prosecution fails to take account of the verdict in the first trial, is that not more to the point?

MR GLYNN:   That is the essence of it, your Honour.  The prosecution sought a verdict on a particular basis, asked that any other basis for conviction be rejected, then came along to try Jobling for murder on the – calling the person who had previously been convicted, asking the jury to at least on one approach accept evidence which they had said should be rejected at the previous trial and had clearly been rejected by the jury at the previous trial.

KIEFEL J:   So what you have to say is that the charges and the evidence led on the trial against your client should somehow be limited, but would that be a proper function of the prosecutor?  The prosecutor really has to adduce the evidence that the witnesses have – that is, their account of the events – and then tailor the directions towards the end, as occurred here, in accordance with what that evidence fairly admits.

MR GLYNN:   Your Honour, the Crown can elect, or select, the basis upon which they say the case should be put to the jury.  In fact, that is what they did in the trial of Hinschen.  There were three bases upon which Hinschen could have been convicted – one of which was based on his evidence at that trial.  I accept that the Crown could not prevent that evidence coming out at this trial, but it is my submission that that could not be a proper basis for conviction at this trial – the Crown having sought a verdict and clearly obtained a verdict on a completely different inconsistent basis. 

BELL J:   Do I understand from something you just said, Mr Glynn, that Mr Hinschen gave evidence at his own trial?

MR GLYNN:   I am sorry, your Honour, that is wrong.  It was a version that was put.  I apologise, I did get that wrong.  It was a version that he had previously given that was led at his trial but not ‑ ‑ ‑

BELL J:   It tends to highlight this issue that is raised by the proposition that you advance.  The trial of your client involved evidence that was different to the evidence that was led at the Hinschen trial.  It might be said that it would have been wrong of the prosecution not to call Mr Hinschen, he having been convicted, and he clearly being, on the face of it, a material witness.  Once Mr Hinschen gave evidence, including his account that it was your client who did the act causing death that presented an issue about how the matter was to be left in directions. 

The prosecution, as I understand it, made clear that it was not inviting the jury to accept the oral evidence that Mr Hinschen gave.  The Crown sought, consistently with the way they had conducted the trial against Mr Hinschen, to have Mr Hinschen declared hostile in order to place before the jury the version that he had given to the police and then to seek, pursuant to the Evidence Act, to have the jury act on that version as evidence of the fact.  Is that right?

MR GLYNN:   No, with respect, your Honour.  It is not entirely correct.  The prosecution, admittedly – and I concede – made as their primary submission that they would act upon the confession he had made to the police.  But they left open the possibility, as did the trial judge, of convicting on the basis of the evidence that Hinschen gave before he was declared hostile. 

BELL J:   I appreciate that the matter was left open.  Had it not been this point could not arise, but the matter that I am taking up with you in terms of a submission that the prosecution wrongly conducted the trial against your client on a basis inconsistent with the Crown case in the matter of Hinschen, the point that I am taking up with you is that the Crown invited the jury in closing submissions to not accept the oral evidence that Mr Hinschen gave, that the position that the Crown took as what I think the trial judge characterised as the primary case was a consistent one, was it not?

MR GLYNN:   The primary case was consistent, but the further case was left.  The Crown did not ask the jury to reject, in the true sense, that version and, in effect, not convict if that was the version they found.  That version could have been taken away from the jury and they could have been left with just the version that came from his evidence after he was declared hostile, which was from his confession to the police.  That is really the substance of the complaint, that the jury were left to act should they so seek on the basis of his evidence at the trial which was inconsistent with the basis upon which the Crown both sought and obtained the verdict at Hinschen’s trial.

BELL J:   Given that the evidence was different and that the accused was different in the two trials, what is wrong with the approach that was taken, that is, for the Crown to leave open if, as an alternative case, the case that was left based on the evidence that was led at your client’s trial, that evidence not having been led in the trial of Mr Hinschen?

MR GLYNN:   All three versions of Mr Hinschen’s were before the jury at his trial.

BELL J:   Yes, but Mr Hinschen did not give evidence.

MR GLYNN:   He did not give the evidence, I agree.  But the prosecution nonetheless asked the judge at Hinschen’s trial, and he so directed, that if the jury did not accept the version involving Hinschen acting alone at the urging of Jobling then they should acquit.  That is what, in my submission, should have been done in this trial.

BELL J:   Why is that, as a matter of principle, what should have been done, given that there was different evidence at the trial of your client to the evidence that had been given at the Hinschen trial?

MR GLYNN:   Your Honour, although there was different and probably other evidence given at Jobling’s trial, the central focus of the case was the evidence of Hinschen as elicited after he was declared hostile and of course his other versions were actually before the jury.  Your Honour, I do not know whether I misunderstood something you said earlier.  It is not my suggestion that the Crown could not lead the evidence of Hinschen as to the version he gave at Jobling’s trial.  That would have been impossible because they would have had to in some way gag him.  But what they did not do was that evidence having inevitably gone in, they did not tell the jury, and the trial judge did not tell the jury that they could not act on that version because it was inconsistent with the position adopted and the basis upon which Hinschen was convicted.  The basis upon which Hinschen was convicted was that Jobling was an urger who was not present at the killing.

BELL J:   I understand that.  That was at a trial between the Crown and Mr Hinschen based on evidence admitted at that trial.  The matter I am trying to come to grips with is the principle that you say made it requisite that the Crown disavow a different basis for liability in a trial of another accused on different evidence.  It is the principle.

MR GLYNN:   Yes, and the principle is, your Honour, that to do otherwise was, in effect, to invite the possibility of a verdict on an entirely different basis and that is it would controvert basis of the verdict against Hinschen which was that he committed the offence alone and that Jobling was the counsellor or procurer.  That is why I have sought to fit it within the principles of incontrovertibility.  If, of course, it cannot be done when the parties are different ‑ ‑ ‑

KIEFEL J:   How is the verdict against Mr Hinschen controverted by the later verdict against Jobling, or the charges against Jobling?

MR GLYNN:   It would be controverted, your Honour, if it was on the basis of Hinschen’s evidence before he was ‑ ‑ ‑

KIEFEL J:   It is not put into doubt by either, is it, in the way in which one talks about incontrovertibility?

MR GLYNN:   Well, with respect, it is because to leave that version available to the jury means that the basis - and it is a case where the basis for the conviction of Hinschen can be clearly identified – the basis or one of the bases upon which Jobling could be convicted was specifically inconsistent with the verdict against Hinschen.

BELL J:   The authorities on which you rely, you accept, do not address a circumstance involving different accused?

MR GLYNN:   I accept that, your Honour.

BELL J:   So it is a principle, as Justice Kiefel was putting to you, that is directed to the conduct of the Crown in presenting a case on a basis said to be inconsistent, is it?

MR GLYNN:   Well, it is the conduct of the Crown in presenting the case in the way it did on the second occasion.  The submission I make is that that represents the attack on the verdict in the trial of Hinschen.  As I say, I accept that this is not identical to any of the earlier cases in that all of those involve actions involving the same party on each occasion.  Here, however, it is plain that that is not of itself necessarily fatal, as is said in many of the authorities on abuse of process; the categories are never closed.  It is the conduct of the Crown that creates the abuse.

If I fail at this hurdle, your Honours, I do not think I am going to advance it further.  Can I perhaps just refer to a couple of passages?  The Crown referred to Gilham and at page 322 in the judgment of Chief Justice Spigelman he talks of the breadth of the approach to this concept.  At paragraph 54 he says that:

The fact that the killing of the parents occurred in the same sequence of events as the killing of the brother is not the critical factor . . . The critical factor is the basis upon which the acquittal of the murder of the brother occurred.

BELL J:   This was in the context of the extent to which, at the later trial of the same accused who had pleaded guilty to manslaughter, the Crown might be seen, as it were, to canvass the acquittal on murder of the brother which was implicit in the Crown’s acceptance of his plea to manslaughter and that does raise very different issues.

MR GLYNN:   That is right.  But his Honour then goes on to say:

The series of cases in the High Court, from Rogers and Pearce through The Queen v Carroll to Island Maritime v Filipowski, apply the principle of incontrovertibility on the basis of the values underlying the principle.  Such a focus requires this Court not to be concerned with technical distinctions. The pith and substance of the disposal of the original proceedings was that the applicant was acquitted of murder on the basis that he acted under the provocation of his brother having killed their parents. This is not simply an inconsistency.

That is the point.  My submission is that the breadth of this principle is such that it can be extended beyond the situation where different parties are being prosecuted and verdicts sought against them but particularly so in this

case where the person convicted on the first trial then became the Crown’s witness on the second trial.

KIEFEL J:   In this particular case did not the final directions to the jury by the trial judge, having regard to the fact that the prosecutor had all but abandoned the case that your client was the actor in this, did those directions not ameliorate the conduct of the case by the prosecution up to that point.

MR GLYNN:   With respect, no, your Honour, because the only thing that could have ameliorated was to take away that basis, because no one will ever know of ‑ ‑ ‑

KIEFEL J:   But his Honour all but did that did he not, by his directions?

MR GLYNN:   With respect, I do not think it went that far.  He certainly said that the other basis was the Crown’s preferred position, but in fact it could and should have been taken away from the jury so that there was no doubt about the approach that the jury took to the trial.  I do not think, in the circumstances, your Honours, I can take it any further.

KIEFEL J:   Thank you, Mr Glynn.  We need not trouble you, Mr Moynihan.

This application is said to raise a question respecting the application of the principle of incontrovertibility discussed in Rogers v The Queen and Carroll v The Queen.  Those cases considered that principle in the context of two proceedings against the same accused.  Different issues may be thought to arise where, as here, there is no identity of parties.

The admissible evidence at the applicant’s trial differed from the admissible evidence in the separate trial of his co‑accused.  The evidence given by the co‑accused at the applicant’s trial afforded, at least in theory, a basis upon which liability as principle in the first degree might be established.  This was the alternative case which the trial judge left to the jury.  Questions of oppression and finality which were said to inform the principle of incontrovertibility in Carroll do not arise.

The application is not a suitable vehicle for the consideration of any larger question of abuse of process arising from the conduct of the prosecution in the separate trials of co‑accused.  The liability of the applicant was left to the jury on the basis that the prosecution’s primary case was that he had counselled and procured his co‑accused to carry out the killing.  The alternative case was disavowed by the prosecution in closing submissions.  The prosecution case was a strong one.  The interests of the administration of justice do not favour a grant of special leave.  The application for special leave is refused.

The Court will adjourn until 2.00 pm.

AT 1.26 PM THE MATTER WAS CONCLUDED