Kupsch v Zanker

[2014] HCATrans 250

[2014] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A10 of 2014

B e t w e e n -

DAVID KUPSCH

Applicant

and

CHRISTOPHER ZANKER

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 NOVEMBER 2014, AT 9.34 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friends, MR S.J.G. THOMAS and MR B.A. MEE, for the applicant.  (instructed by Rossi Legal Lawyers)

MR C. JACOBI:   May it please the Court, I appear with MS K.B. WYCHERLEY, for the respondent.  (instructed by Crown Solicitor (SA))

FRENCH CJ:   Yes, Mr Bennett.

MR BENNETT:   If the Court pleases.  Your Honours, there is no direct authority in ratio in this Court on excessive questioning of a party by a judicial officer.  In this case, four judges of the Supreme Court of South Australia have divided 2:2 on whether the cross‑examination of the defendant by the magistrate was on the wrong side of the line.

FRENCH CJ:   Did not Mr Justice Kitto once say that these are matters in which reasonable minds may differ?  I think I quoted, in fact, in British American Tobacco v Laurie, albeit in a dissenting judgment.

MR BENNETT:   Yes.

FRENCH CJ:   On apprehended bias.

MR BENNETT:   Your Honour, the problem here is that the nature of the tests applied differed between the two pairs of judges.  The judges who applied what we say is the correct test came to the view that the conviction should be quashed, and the judges who applied what we say is the incorrect test took the other view.  That makes this case a convenient vehicle for identifying and defining the relevant rule.

GAGELER J:   Well, the test, as I understand Chief Justice Kourakis to have accepted it, appears at page 188, paragraph 68, in the quotation from Justice Dawson.  Is there something wrong with that test?

MR BENNETT:   Yes, your Honour because that is the test in relation to apprehension of bias which is one aspect of the excessive questioning.  Your Honour, the error can be identified quite easily.  Your Honour sees that at the beginning of paragraph 66, his Honour says that he recently reviewed the principles in R v T, WA and he then applies his own prior judgment.

That case, your Honour, is the second case in the respondent’s book of authorities. It is reported at (2014) 118 SASR 382. If your Honours go to paragraph 37, your Honours will see where the error creeps in. His Honour starts by referring to the judgment of Justice Vanstone in Lockwood v Police where her Honour said:

there are dangers inherent in participating in the question of witnesses ‑

and three dangers are referred to.  His Honour conflates the three dangers into three grounds and then analyses each of the three grounds in this case and says, well, each one on its own is not made out sufficiently and therefore comes to a conclusion.  The correct approach, we respectfully submit, is that put by Justice Sulan at page 217 of the application book, paragraph 125.  Your Honours will see that what his Honour there says is:

I am of the view that where it is complained on appeal that a trial has been unfair as a consequence of excessive or undue judicial intervention, a court is not limited to considering aspects of unfairness and impartiality in isolation, particularly where the conduct of the judicial officer encroaches upon both principles.  Whilst is it attractive to compartmentalise particular conduct into easily‑definable categories, viewing the principles in isolation distracts consideration from the effect of the intervention as a whole.

That is exactly the error which we respectfully submit the Chief Justice has fallen into.

FRENCH CJ:   So it is a debate between, as it were, a holistic approach and an analytic approach?

MR BENNETT:   Well, we would say, analytical ‑ exception holistic and compartmentalise but, yes, your Honour.

GAGELER J:   What is the yardstick that you say should be applied if it is not the apprehension of bias test?

MR BENNETT:   It is an overall question of looking at has there been some steps towards a reasonable apprehension of bias.  Has there been some step towards undue interference with the conduct of the case?  Has there been some step towards the judge entering into the fray and the dust of conflict, et cetera and just looking at the three as a whole in the light of the judicial conduct and saying it is on one side or the other of the line.

GAGELER J:   You might need to amend your draft notice of appeal considerably to encompass an argument of that nature.

MR BENNETT:   Yes, it could be tidied up, your Honour; certainly, we will undertake ‑ ‑ ‑

FRENCH CJ:   At 190 I think the Chief Justice says at paragraph 74:

I now turn to evaluate the Magistrate’s questions against the three ways in which a miscarriage of justice may result from excessive judicial intervention which I earlier identified ‑

and you accept those three ways, it is just how you approach them in analysing what has happened, is it not?

MR BENNETT:   Well, there are three consequences, if one likes ‑ ‑ ‑

FRENCH CJ:   Yes, well, that is right, you look at those.

MR BENNETT:   ‑ ‑ ‑ there are three reasons for having a rule, but they are not three bases and one says, well, is this one established sufficiently to justify intervention and the same with the second and third.  What his Honour then does is in looking at the three, in looking at the first one in paragraph 76, he refers to a totally different type of apprehended bias and then at the end of paragraph 76 on page 191 says:

Apparent bias cannot be shown by an adverse conclusion in itself.  It must appear from a matter external to the trial, or an indication of prejudgment –

but how can it appear from a matter external to the trial if the context of the apprehension of bias is excessive intervention by the trial judge?  In other words, that test or quotation is totally inapposite.  He then says disruption was not established.  Then on the third one at the bottom of that page in paragraph 80 says:

There remains to consider the dust of conflict ground.  In my view, only rarely will a miscarriage of justice be found on this ground if the intervention has not raised a reasonable apprehension of bias ‑

so the third one fails because the first fails.  The first fails because it is not external when it is never going to be external and, in my respectful submission, that has led his Honour on the facts of this case into error.

GAGELER J:   What do you say about what his Honour says about the precise facts of this case in paragraphs 75 and 76, fact one being what his Honour infers a reasonable observer would appreciate about the nature of the magistrate’s inquiries, and fact two being that defence counsel made no complaint about the magistrate’s intervention at the time.

MR BENNETT:   Well, your Honour, in relation to the second we submit that the rule is absolute and where there is excessive intervention giving rise to miscarriage of justice, then the failure to protest does not cure it.  Of course, in any event, it is a difficult thing to object to ‑ as a tactical matter for obvious reasons for defence counsel to object to lines of questioning by a presiding judge.

FRENCH CJ:   Well, they have got to decide whether it really matters or not.  That is the kind of judgment you make in the arena, do you not?

MR BENNETT:   Yes.

FRENCH CJ:   You trade off the question of how much damage, if any, does this do to my client and that is a judgment or an evaluative judgment of the kind in a sense which you are asking the court to second guess.

MR BENNETT:   Yes.  Now, your Honours, I do not propose on this application to take your Honours through the questioning obviously, but just to say this ‑ ‑ ‑

FRENCH CJ:   We have read the questioning.

MR BENNETT:   ‑ ‑ ‑ that it was particularly unfair for this reason.  The issue in the case was whether the defendant had obtained a benefit by dishonest means and, indeed, the cases show that the Crown does not need to show that the defendant was not, in fact, entitled to the benefits if he has obtained them by dishonest means.  The alleged dishonest means was primarily non‑disclosure of his performing tasks in a bakery owned by his family company, work which on uncontradicted evidence was less heavy and less straining on his back and neck and so on than the work he would have had to perform doing his normal duties in the police force.  He gave that answer and the magistrate, as has been pointed out by Justice Gray, simply ignored the answer.

So what the magistrate seems to have done is asked extensive questions directed to the issue of earning money ‑ or indirectly earning money, I suppose, it is a family company – while on workers’ compensation.  There is a string of questions along the lines, “Did you think your employer would want to subsidise your family company?” and “Even I who have never been on compensation would know that the employer would want to know”, and so on, all of which rather ignored ‑ ‑ ‑

FRENCH CJ:   Nobody approved of the line of questioning or the degree of questioning I think below.

MR BENNETT:   No, they did not.

FRENCH CJ:   There is a question of the legal consequences.

MR BENNETT:   The real unfairness is they are directed to a question of mixed fact and law, the question of whether he did have a duty to disclose the particular things he was doing and, of course, it cannot depend on the earning of money.  If someone on compensation unable to lift objects gets on the phone to his broker and successfully engages in some share trading, no one would say, “Well, his employer is subsidising his share trading activities and he has a duty to disclose it”, and so on.

That assumption lies behind a lot of the questioning, and that is what made a lot of the questioning unfair.  As Justice Gray points out, where he has given an explanation for not telling his employer, the magistrate simply ignores it and says that no explanation was given, although a very clear one was, namely, that the work was less onerous than the work at work.  Also, in another place, the defendant said that he regarded it, at least in part, as having the purpose of rehabilitation by gently getting him back into doing things so he could go back to work.

I do not want to go into the facts, but it is also clear on the facts that the defendant was, for most of this period, trying to persuade his employer to let him go back to work.  It is not a case of someone malingering and trying to avoid work so he can do something else.  The questioning, of course, is continuous and, for the reasons given by Justices Gray and Sulan, clearly unfair.  In my respectful submission, this is simply a very convenient vehicle for the Court to determine it.  Another example, by the way, of how the erroneous tests are applied is that the Chief Justice at page 192 in paragraph 83 refers to his earlier analysis of the interventions:

I would hold that the Magistrate’s interventions did not amount to an abdication of the Judge’s role as the officer presiding over the trial –

that puts it very highly –

The questioning was longer and more pointed than was necessary, however, it was not “so gross or so persistent” as to compromise the Magistrate’s capacity to independently evaluate the evidence.

That puts the test far higher than anyone else puts it.  Indeed, it puts it higher than the one dictum in this Court which refers to it, the case of Jia.  I can hand copies of that to your Honours.  It is Minister for Immigration v Jia reported in volume 205 ‑ ‑ ‑

FRENCH CJ:   That was about ministerial statements.

MR BENNETT:   It was, your Honour.

FRENCH CJ:   Quite a different situation.

MR BENNETT:   Completely different, your Honour.  The passage I cite is a dictum in comparing the situation with a judge, but ‑ ‑ ‑

GAGELER J:   Mr Bennett ‑ ‑ ‑

MR BENNETT:   ‑ ‑ ‑the importance of the dictum is one of the few references in this Court, and the Act ‑ ‑ ‑

FRENCH CJ:   I think Justice Gageler had a question for you.

MR BENNETT:   I am sorry, your Honour.

GAGELER J:   Mr Bennett, that case was directed to a question of bias.  Chief Justice Kourakis got to paragraph 83, having dealt with the question of bias, by the time he got to paragraph 77; he had moved on to another point.

MR BENNETT:   Yes.  The only point I make is that paragraph 179 in the judgment of Justice Hayne is a dictum which puts the general test considerably lower than the way it is put by the Chief Justice in this case.  It is another aspect of the reason why we say the decision below is erroneous.  For those reasons, we respectfully submit that there should be a grant of special leave.

FRENCH CJ:   Thank you, Mr Bennett.  Yes, we will not need to trouble you, Mr Jacobi.

The principal special leave question raised in this application concerns the conclusion by the majority in the Full Court of the Supreme Court of South Australia that the learned magistrate who convicted the applicant on 24 counts of obtaining by dishonest means payments under the Workers Rehabilitation and Compensation Act 1986 (SA) had not, by reason of excessive questioning of the applicant at trial, created the appearance of bias and had not otherwise compromised a fair trial of the applicant by descending into the arena.

The Full Court, in allowing an appeal against the decision of the judge of the Supreme Court who had allowed an appeal against the convictions, made its own evaluation of the timing and content of the questioning complained of and noted the failure of defence counsel to object to the interventions.  In our opinion, no question of principle warranting the grant of special leave is disclosed.  Special leave will be refused.

AT 9.53 AM THE MATTER WAS CONCLUDED