Kamm v The Queen

[2010] HCATrans 258

[2010] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S124 of 2010

B e t w e e n -

WILLIAM KAMM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 OCTOBER 2010, AT 11.11 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear for the applicant.  (instructed by Macedone Legal)

MS D.M.L. WOODBURNE, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (NSW))

HEYDON J:   Yes, Mr Wendler.

MR WENDLER:   Your Honours, before I open the application, there is the issue of time and I understand there is no objection to enlarging the time.

HEYDON J:   Let us not bother about that and concentrate on the substance.

MR WENDLER:   Yes, move straight into it.  Can I introduce the special leave question this way.  In Fingleton v The Queen, this Court recognised that the forensic choices made by counsel can never be subordinated to a court’s transcendent duty to ensure that the trial conforms with the fundamental features of a criminal trial. 

Your Honours, the adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel and that counsel has a wide discretion as to the manner in which proceedings are conducted.  Fundamental to the role of counsel is a demonstration, an unequivocal demonstration, of independence and disinterest.  What occurred in the circumstances of the applicant’s trial demonstrated that this fundamental aspect of the adversarial process did not come about by reason of the exchange that occurred between trial counsel and the important prosecution witness. 

There is set out in the application book, from page 128 onwards, the evidence that underpins the issue of the clear lack of disinterest culminating extraordinarily in the trial judge actually asking the prosecution witness who was being cross‑examined, at 132 of the application book – the trial judge saying to the witness whether the witness accepted that the barrister had committed a criminal offence in relation to an issue concerning the destruction of documents – documents which, on the Crown case, were capable of being incriminatory of the offences charged. 

The Court of Criminal Appeal resolved this controversy by effectively making a finding that the advocate and the witness were at cross‑purposes and there was not the forensic impact that was claimed has ultimately led to a miscarriage of justice.  There is the fact, and there is of course the perception.  Whether or not there was any breakdown in communication between the witness and the advocate was not really to the point.  The clear insinuation from some of the answers suggested, and would have suggested to objective bystanders, that the advocate was in collusion, at worst in criminal collusion with his client and was clearly acting in a manner which did not demonstrate disinterest.

The Court had an overriding or transcended duty to, in effect, inform itself that this trial was being conducted in accordance with one of the fundamental planks or foundational features of the adversarial system of litigation, namely, that there was disinterest demonstrated in the circumstances of this trial.

CRENNAN J:   Can I take you in that context to application book 102 at paragraphs 26 and 27 of Justice Giles’ reasoning?  At 26, his Honour there describes how the matter was let rest.

MR WENDLER:   Yes.

CRENNAN J:   And he states, without going into counsel’s thought processes, there could readily be a reasonable explanation for not applying for a discharge.  At the bottom of that paragraph, he recognises that:

For all this Court knows . . . received instructions to proceed as -

was done.  Then in paragraph 27, his Honours refers to the fact that the decision made by counsel is:

“the kind of tactical decision routinely made . . . that a Court of Criminal Appeal would –

not ordinarily inquire into and have no capacity to inquire into what lay behind a forensic decision.

MR WENDLER:   Can I address your Honour’s Justice Crennan’s inquiry in this way?  There could not have been any tactical advantage, having regard to the exchange in which it occurred, and this was not about the advocate.  It was about the trial process and the integrity of the trial process.

CRENNAN J:   But at the end of the day a misunderstanding occurred.

MR WENDLER:   Your Honours, there is no way and the Court of Criminal Appeal did not explain how the jury would have seen that as a misunderstanding in the absence of the judge telling them so.  The judge said nothing about this.  After that exchange occurred there was an adjournment where the barrister indicated that he would “get a ruling”.  He returned to court the next morning and said that he was “satisfied with this position”.  The trial went on.  Surely, the overriding obligation of the court was to make inquiries in relation to what had happened and second, at the very least, to give the jury a firm instruction that if there had been a misunderstanding then that was what it was and the jury should have absolutely no regard to it.

CRENNAN J:   Was a direction sought along those lines?

MR WENDLER:   No, it was not sought, but that is not the point.  The special leave issue here is this.  Sometimes there is a tension between the discretion and forensic decisions of counsel on the one hand, and the overriding responsibility of the court to ensure that a trial conforms to the fundamental features of a criminal trial.

That is effectively what happened in Fingleton. This Court, of its own motion, raised a ground of appeal never argued in the Court of Appeal. A defence issue was not even argued at the trial. This Court did that because of its overriding responsibility in section 73 of the Constitution to ensure that the trial process that occurred conformed to the fundamental features of a criminal trial.

We go back to Pemble’s Case as far as 40 years ago, where this Court held that even when the advocate does not identify a defence or disavows a defence, a court still has an overriding obligation to put any defence that is reasonably open on the evidence.  So there is this, as it were, tension between these two fundamental, as it were, requirements.

What effectively occurred as a result of that exchange was that the applicant was, from that point on, effectively unrepresented or worse, the tainting of the trial as a result of that exchange was such that following that the trial had effectively left the rails.  During the course of the summing‑up the trial judge mentioned on many occasions the role of counsel.  He identified the role of counsel and how submissions were made by counsel, the importance of counsel in the trial.

Now, all of this was totally and completely tainted as a result of the exchange which insinuated, on the face of it, that the barrister was acting completely with a lack of disinterest, was colluding with his client and was, in fact, putting propositions to the witness which he himself knew to be untrue.  So, if the Court pleases, the fundamental special leave issue in this application focuses upon the overriding obligation of a court to interfere to ensure, in any case, that the fundamental features of a criminal trial and indeed, even in a civil trial, are being adhered to.  The witness that was involved in the controversy was an important witness. 

CRENNAN J:   This is Mrs Ross?

MR WENDLER:   Yes.  The case was a single issue case.  Effectively, the issue was not whether there had been a sexual relationship, but when the sexual relationship had occurred.

CRENNAN J:   About whether the complainant had been 14 or 18?

MR WENDLER:   Well, when it occurred.  That is beyond 16, yes.  It was a single issue controversy and there was evidence introduced in the defence case which suggested that the evidence of the complainant was unreliable.  There was evidence in the case which suggested that the complainant was in collusion with another person by the name of Coombridge for the purpose of extracting money from the applicant.  There were these controversies that emerged. 

So what occurred between counsel and that particular important witness, without any involvement by the court in the sense of anaesthetising or obeying its overall transcended duty to ensure that the trial conformed to a fundamental feature of the criminal trial process, a failure by the court to intervene and ensure that there was not, at the end of the day, to be a miscarriage of justice, that particular failure, in my respectful submission, by itself warrants a grant of special leave.

That would, of course, bring into sharp focus the tension between the rule that litigants are bound by the discretionary process and forensic judgments and independence by their counsel and this overriding duty which, in my respectful submission, exists and is all controlling and should have, in the circumstances, informed the trial judge when that particular controversy between the applicant and the witness effectively exploded and the trial from that point on, in my respectful submission, left the rails.  If the Court pleases, they are the submissions.

HEYDON J:   Yes, thank you, Mr Wendler.  We need not trouble you, Mrs Woodburne.

In our opinion the application must be refused on the ground that there are insufficient prospects of success in any appeal were special leave granted and the outcome below was not inconsistent with the interests of justice.

AT 11.24 AM THE MATTER WAS CONCLUDED