Lane v The Queen

[2017] HCATrans 264

[2017] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S192 of 2017

B e t w e e n -

PAUL IAN LANE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2017, AT 11.07 AM

Copyright in the High Court of Australia

MR H.K. DHANJI, SC:   May it please the Court, I appear for the applicant with my learned friend, MR S.J. BUCHEN.  (instructed by Legal Aid (NSW))

MS W.J. ABRAHAM, QC:  May it please the Court, I appear with my learned friend, MS B.K. BAKER, for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Dhanji.

MR DHANJI:   Thank you, your Honours.  Your Honours, the applicant requires an extension of time in which ‑ ‑ ‑

MS ABRAHAM:   It is not opposed.

KIEFEL CJ:   Yes, you have that extension.

MR DHANJI:   Thank you, your Honour.  Your Honours, there are two grounds upon which we would rely if special leave were granted.  They raise, in our submission, issues of importance with respect to the proviso and, secondly, in terms of assessing a reasonable apprehension of bias in the context of a jury where the nature of the inquiry is necessarily limited because of aspects, obviously, attending to a jury.  If I can say at the outset in relation to that second ground, without meaning to diminish its significance, I can be relatively brief given the material ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR DHANJI:   ‑ ‑ ‑ and perhaps spend a longer time in relation to the proviso issue.

BELL J:   Yes, I think that would be wise.

MR DHANJI:   Thank you, your Honours.  In relation to the proviso I have no doubt that your Honours have spent some little time recently giving consideration to the issue.  But this particular case, in our submission, is a suitable vehicle for further consideration of the proviso.

BELL J:   Mr Dhanji, can I just – I am sorry to interrupt ‑ ‑ ‑

MR DHANJI:   Not at all.

BELL J:   ‑ ‑ ‑ but just to clarify some factual matters which may be relevant to this aspect of your argument.  Am I right in my understanding that whilst an inference was open from the CCTV footage that the second incident involved a punch, one did not actually see that.  Is that correct?

MR DHANJI:   That is correct, your Honour.

BELL J:   There were, I think, at least three witnesses to the second incident, each of whom was said to be, to some degree, intoxicated.  Is that so?

MR DHANJI:   I hesitate in relation to accepting that because that requires one to actually analyse what they saw and whether it was the second incident or the first incident.

BELL J:   I see.

MR DHANJI:   But there were certainly witnesses – certainly, there seems to have been a large quantity of alcohol consumed.  But ultimately there was at least one witness who gave evidence of seeing a punch which would relate to the first fall, and other witnesses where one might say well, that is more likely at least to relate to the second fall.  But of course the difficulty in all of that is one has to actually take a step back, try and put together – the trial judge in the summing‑up referred to it as a mosaic where you had, in effect, quite incomplete accounts from everybody, including the closed circuit television. 

There is a description of the closed –circuit television in the reasons of the majority in the Court of Criminal Appeal at page 253, and it, in a sense, answers your Honour’s question by omission – it is paragraph 52.  Your Honours do not need to turn it up.  But, in effect, they give a description and it is quite apparent from that that the description does not include actually seeing a punch.

BELL J:   Did the Court of Criminal Appeal view the CCTV footage?

MR DHANJI:   Yes.  What is also significant, though, in terms of the CCTV footage in relation to the second incident was that what could be seen was the applicant’s head coming back or moving backwards quite quickly immediately prior to the deceased falling to the ground.  So that of course raised live questions with respect to self‑defence in relation to that second incident.  So there were live issues going on.

I should say that comes in the context of the applicant himself having been bailed up against the shopfront window earlier in the course of the incident.  So you do have these difficulties surrounding the distinguishing of the two and you do have, clearly enough, different issues with respect to the issues of voluntariness, intention, self‑defence that all had to be fed into the particular act that was relied upon.  So the idea that one could somehow step away from this in the context of a jury’s verdict that was, in our submission, flawed created a real difficulty.

But if I can go back to where I started and, in particular, why we say this is an appropriate vehicle because what you have presented starkly in this case is two members of the Court of Criminal Appeal applying the proviso, doing so after an analysis of the strength of the Crown case, sitting next to a third member of the court who says – and, again, your Honours do not need to turn it up, but it is at application book 299 – if ever there was a case where the proviso could not be applied, irrespective of any view of the strength of the case, the present is a case for it.  His Honour went on to say:

It is difficult to conceive of a more serious error –

So the disparate nature of those views in the Court of Criminal Appeal highlight starkly the need for this Court’s intervention in this case to give some assistance. 

Now, we accept at once that one is not going to be able to achieve a taxonomy of errors that might be described as, I hesitate to say, fundamental or going to the presuppositions of a fair trial.  This is not going to be the case for it because no case is the case for it.  But that is not to say that there are not ways of approaching the questions that are going to inform one as to whether you get to this issue.  So when you look at the proper approach you have in Baiada Poultry, at paragraph 30, the joint reasons making clear the starting point is the identification of the error.

Now, that is not just to say the identification of the error in the sense that one needs an error within the second or third limb of section 6 but rather the identification of the error in terms of an understanding of what it is doing.  In our submission, if one does not start with that first step and launches into an analysis of the potential impact or lack of it one is going to be led astray. 

The reason is this.  To take an extreme example, you are going to have cases where the jurisdiction of the court below has not even been engaged.  Your Honour Justice Bell will recall, I think, some 12 short years ago a case of Halmi in the New South Wales Court of Criminal Appeal.  To get your Honour the Chief Justice up to speed, what happened there was an indictment was signed by a person who was not authorised to sign it and therefore it was found to be invalid.

Now, what happens there is that because of that invalidity in the indictment, the jurisdiction of the court was never properly invoked.  What flows from there necessarily is that no analysis of the evidence led in support of the Crown case is going to assist you in terms of whether the proviso should be applied. 

What is worth pausing to note in relation to that is that it is also clear in a case like that that there is actually nothing in the error that impacts on the analysis of the evidence in the Crown case – in other words, it is not a case where one says, well, because of this error, to take another example, excluding evidence, in that case you might say well, because of this error and the nature of the error, it is very difficult to analyse and that is going to vary depending upon the importance of the evidence.  But you will have these cases where there is no impact at all on the ability to analyse the evidence or the strength of it.

BELL J:   But that, you would say, is not this case because you would say, firstly, in light of the nature of this error one could not take anything from the verdict because there need not have been agreement on the actus reus.

MR DHANJI:   Yes.

BELL J:   So that is the first thing that places an inhibition on the capacity of the appellate court to be satisfied of the negative condition in Weiss.  Secondly, you would say, in any event, this is a case that depended on the assessment of the civilian witnesses in no small measure.

MR DHANJI:   Your Honour, we would accept that but, in a sense, we would go further and say that one does not even need to go to the negative proposition in Weiss because of course the negative proposition – even if one goes to the negative proposition in Weiss one is saying – and in a sense I am repeating what your Honour said – but one is saying you look at the whole record, including the fact that the jury has returned a verdict of guilty.

But when you look at this case you say, “Well, I’ve got the fact that the jury returned a verdict of guilty to something, but I actually don’t have a verdict” and that is just another way of saying what I am trying to use as my starting‑off point, that is ‑ ‑ ‑

BELL J:   You are trying to shoehorn this into that category of case which, it is accepted, precludes the application of the proviso regardless of the strength of the prosecution case.

MR DHANJI:   I would not say shoehorn but “to fit it in neatly”.  I think we can agree.  The reason for that, though, is, your Honour - and again, I apologise, I am going to be what might be described as trite, but one starts with the indictment on page 5 of the application book and what one has there is a charge of murder with some particulars provided in relation to date and the deceased.   But, as your Honours will appreciate, the particulars are obviously not limited to what is in that indictment and, ultimately, the Crown need to particularise their case, at the latest, by the time it closes.  It is that particularisation that one looks to and you have a plea of not guilty on the indictment.  Of course, that is where you have the joinder of issue.  What the jury’s verdict does is actually resolve the joinder of issue.

BELL J:   Everyone accepts there was an error, Mr Dhanji.

MR DHANJI:   That is right.  But what I am getting at is that if the jury’s verdict does not actually resolve the joinder of issue in the case, then it is not a verdict in the true sense.  Some of the cases actually talk about whether a verdict could properly be called a verdict.  They are fairly oblique references, but certainly I think Justices McHugh and Gummow in S v The Queen, a case which actually has parallels because the other way of looking at this case is like a latent duplicity case because you have these two cases going to the jury. 

What those cases are all species of are cases that highlight the fundamental requirement of certainty.  That is why I start with the indictment and the particulars because what you have is actually a trial that proceeds and it is lacking that notion of certainty.  So when one goes to section 6 of the Criminal Appeal Act and tries to apply section 6, before one gets even to the application of the proviso – it is set out at page 320, but I do not doubt your Honours have read it more than once – the words of the provision state:

(1)The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable –

So you have to have a conviction, as you do on the record here, but you have to have a verdict of the jury relating to that conviction.  So if you do not have the joinder of issue, you are not even in the territory of having a verdict that is related to the conviction.

BELL J:   I understand the point.

MR DHANJI:   Yes.  I am sorry, I did apologise at the outset for being trite, but it does demonstrate, in our submission, the problem.  So if I can go then to what happened in the reasoning of the majority, what their Honours did – the judgment of the Court of Criminal Appeal is at page 234, but the particular aspect – their Honours obviously found error.  At paragraph 45, which appears on page 251 of the application book, their Honours indicated that the conclusion as to error made it necessary to consider the proviso.  Their Honours went on at paragraph 46 to refer to Weiss.  I will skip over the next part, but at paragraph 48 their Honours, in reference to what is said above in Filippou, they say:

The appellant will have been decided a chance of acquittal which was fairly open unless this Court concludes from its review of the record that in the absence of the omission to give the unanimity direction his conviction was inevitable –

But the problem, which is highlighted here, in our submission, is that one is already needing to ask the question well, which conviction and, indeed, what is the nature of the conviction you are trying to save?

BELL J:   Well, he has been convicted of the single offence charged in the count.  The flaw is the jury were not required to be unanimous as to the actus reus.  I think we understand that.

MR DHANJI:   Yes, that is right, but what that meant was you had, in a sense, two cases before the jury.  You have a conviction for murder but uncertainty as to which of the two bases it was on.  I mean, to draw analogy from different territory, in a sense, that need for certainty comes out also in the sentencing case of Cameron v The Queen because what happens in Cameron v The Queen was there was an issue as to whether there was an early plea of guilty.  There was an importation of some prohibited drug.  The charge wrongly particularised ‑ ‑ ‑

KIEFEL CJ:   I do not think there is any doubt about the need for certainty because the requirement of the direction says it all, does it not, that there must be a direction in relation to unanimity ‑ ‑ ‑

MR DHANJI:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ for all of the reasons that you are going into.  So you have that in your favour.  The question is where does this stand?  Is it an omission of such a nature that the proviso is not reached?

MR DHANJI:   Yes, and in a sense I am repeating myself.  But really what I am trying to get at is that if you – it all proceeds from the record of the trial and if you have this joinder of issue – well, if you have the intended joinder of issue but that is never resolved ‑ ‑ ‑

KIEFEL CJ:   You say you do not know what the verdict actually represents?

MR DHANJI:   That is right.  So what is it that you are trying to – by turning to the proviso and, at least, attempting to apply the negative proposition in Weiss you are necessarily trying to save a conviction.  But you do not know what conviction you are trying to save.

BELL J:   You can take nothing from the jury’s verdict in the circumstances.  Here, you have additionally the fact that the inference of guilt depended on acceptance of the evidence of the civilian witnesses so that even - on the analysis that it was adopted in the joint reasons you would say the proviso should not have been engaged.  On the minority analysis you do not get to it?

MR DHANJI:   That is right.  But we would certainly say that even if one goes through the analysis in the joint reasons, it ought not to have been applied because looking at the record of trial - and there is little in those reasons to say we understand that looking at the record of the trial means including the conviction and what does that conviction mean?  Rather, their Honours embark on their own analysis without actually, really, in that sense picking up the limitations. 

So it may be – I hope I am not doing myself a disservice by trying to put it into fundamental rather than putting my eggs in both baskets.  I do put my eggs in both baskets; I should make that clear.  But if I can just finish the point in relation to Cameron.  The point in relation to Cameron was that one of the reasons why the plea was at the earliest – your Honours, I appreciate that this is a little bit left field – reasonable opportunity was that he could not be expected to plead to a case that wrongly particularised if, for no other reason, than that denied him pleas of autrefois convict or ‑ ‑ ‑

BELL J:   Mr Dhanji.

MR DHANJI:   Yes.

BELL J:   I think we have grasped the point.

MR DHANJI:   So, in other words, all I am saying is that the trial did not do what it set out to do.  That puts us in the fundamental category ‑ ‑ ‑

BELL J:   Well, you disavowed taxonomy at the beginning and now ‑ ‑ ‑

MR DHANJI:   I appreciate, it puts us in the category where one does not say at the trial, “By looking at the strength of the case” – I put it in neutral terms.  Your Honours, could I briefly turn to the second aspect of the case.  Can I simply say, given the limited time available, that this was a trial that took place in a particular context. 

At application book 17 your Honours will see in the course of the very early stages of the summing‑up – this is at about line 30 – it is

regarded as necessary to give the jury an admonition in terms of violence involving public consumption of alcohol.  That all came in the context of a particular witness who gave evidence describing the matter as a “king hit”.  The jury were told to ignore that.  That problem was exacerbated when the Crown Prosecutor addressed the jury, referring to that evidence, and saying to the jury, “Well, we all know what that means.”  Now, against that background ‑ ‑ ‑

BELL J:   There was the material found in the jury room, there was the sheriff’s investigation and, Mr Dhanji, what is the point of general importance that arises out of this in the light of the findings that were open to the Court of Criminal Appeal?

MR DHANJI:   We of course take issue with the findings but, in terms of the point of special importance, in our submission, the way in which the Court of Criminal Appeal approached it failed to acknowledge the limitations because there was, in effect, an issue to be resolved, but it was not an issue that was going to be resolved in the way that litigation is resolved because you only had one side to it – a sheriff’s investigation involving speaking to five of 12 jurors over the telephone.  The Court of Criminal Appeal referred to the responses and referred to them as fact – that is, treated as fact.

KIEFEL CJ:   I see the light is on.

MR DHANJI:   Certainly, your Honours.  I apologise, your Honour.  The point we make is that that is significant or emblematic of the fact that there was a failure to acknowledge the limitations on the applicant in participating in any sensible inquiry.

KIEFEL CJ:   Ms Abraham, you need only address proposed ground of appeal 1.

MS ABRAHAM:   Thank you.  Your Honours, obviously the court accepted there was an error in the directions.  There needed to be a direction in respect to unanimity as to the act that caused the death.  The issue then became what arises from that?  In my submission, the difference between the approach of the majority, which we say is correct, and the minority judgment is that the majority turned its mind to what, if any, effect that particular error had in the circumstances of this case, whereas, meaning no disrespect to his Honour Justice Fagan, he took the approach that, regardless of looking at the evidence, the simple nature of the error was such that it necessarily meant, absent a consideration of the evidence, that there was – to use the word – a fundamental defect. 

So whilst my friend now puts his eggs in both baskets, his written submissions only address the latter, that is, that this is in effect a fundamental error.  In my submission, the approach of the majority is correct.  If one looks at cases like Reeves where one is talking about an error as to the element of the offence, the court here made clear that one does need to look at what significance that had to the issues in the trial, which of itself must necessarily involve looking at the evidence.  Now, what the court did here was do in fact that.

So while it was said there were two incidents ‑ two falls – in reality there was only evidence in respect of the punch, what I will refer to as the second fall.  The fact that the Crown put that there was – I think the word used was – a blow, that is referred to in paragraph 30, the CCTV shows no such contact.  The eyewitnesses say nothing about that contact and, indeed, the judgment of Justice Fagan accepts that. 

The summary of what can be seen on the CCTV is at 253 of the application book.  In paragraph 51 of the majority judgment, at about halfway through the judgment, having described the events in respect to what has been referred to as the first fall, the court describes:

The CCTV footage shows no punch or apparent or obvious contact between the two men.  It is wholly in accord with the deceased having lost his balance as he stepped from the footpath –

The CCTV, insofar as what it showed in respect of the second, is at the bottom, in paragraph 52, towards the bottom of page 253.  So whilst the striking might not necessarily have been shown on the film, what was seen is consistent with the boxing stance, the head go back and the fall.

As the court, over the page at 53 and 54, describe, the evidence of the eyewitnesses supports that, accepting that of course there was the degree of intoxication.  But they support that.  The evidence of the pathologist also supports that in terms of a bruise to the face consistent with a blow.  Just pausing there, my friend in his written submissions and today has not suggested that that is inaccurate in terms of what the CCTV shows.  It has not been suggested that that or indeed the description by his Honour Justice Fagan, which is at paragraph 114 of the application book, which is at 274 – Justice Fagan puts it in terms:

This was open to interpretation by the jury as not showing any physical contact –

that is the first.  The second:

a powerful and well directed punch to the deceased’s head ‑ ‑ ‑

BELL J:   But as his Honour then goes on in the next paragraph to point out:

the Crown at trial did not attempt to present the two fatal head injuries to the deceased as the product of a single incident.

MS ABRAHAM:   Accepting that entirely, your Honour.  I accept that, your Honour, but then the issue becomes if there is no evidence of the first and all the powerful evidence of the second – and my friend, as I said, has not challenged that in his written submissions.  Indeed, the submission that my friend has put in writing as to the possible evidence of the first fall is at paragraph 20, at page 314, which is inconsistent with how the Crown put it and inconsistent with the running of the trial. 

That is, that whilst it might not have had contact – your Honours can read that – that has not ever been the case and that would not have succeeded on the directions given, which require the voluntary and deliberate.  So there is no evidential basis to the first matter.

BELL J:   The first way in which the Crown put its case.

MS ABRAHAM:   Your Honour, I agree entirely.  With the benefit of hindsight, it should not have been done.  No question about that.  But when one is talking about if the test is whether there has actually been no substantial miscarriage of justice, in my submission, what his Honour Justice Fagan has done is said, “Well, I’m not going to go down the path of whether it was actually open because I don’t need to” a jury might have acted unreasonably in finding that.  In my submission, that is not an appropriate way to approach it.

BELL J:   But in circumstances where the Crown’s case has been it is one or other of these two incidents and, I presume, the summing‑up has reflected the Crown’s case in the way the Crown put it, it is a bit difficult to say it was not open to the jury to reason consistently with the submissions that were being put.

MS ABRAHAM:   Can I make two points about that?

BELL J:   Yes.

MS ABRAHAM:   Whilst the summing‑up did deal with both bases, if one looks at, for example, the directions at page 111, at the bottom of the page, the bottom paragraph, it is obvious, in my submission, that that was the focus, not surprisingly so.  Secondly, it is one thing to say that is how the Crown put it, but the jury are directed to act on the evidence.  And the jury are directed that the Crown’s submissions mean nothing and, if there was no evidence, there was no evidence.  The Crown’s submission does not make evidence, with respect.

BELL J:   I understand, but it is difficult point to make good when his Honour is pointing out that the jury may think it more likely that it is the second incident, but the whole tenor of this is to leave open that there were two incidents.  It was the Crown case that either might have involved the fatal blow.  That is how it was left.

MS ABRAHAM:   It was, but the finding of the majority, in our submission, a correct one, that no reasonable jury could have found in respect of the first because there was no evidence. 

BELL J:   Ms Abraham, can I then just raise with you this and it is that, in circumstances where the jury have had a direction but had been left on the basis of a summing‑up that does not require unanimity as to the actus reus and the two cases have been left, it is difficult, is it not, even if the error is not of a fundamental character that would preclude the proviso, is it not difficult for the appellate court to be satisfied beyond reasonable doubt when they cannot draw an inference from the verdict and when they depend on the evidence of civilian witnesses who are, admittedly, intoxicated?

MS ABRAHAM:   Your Honour, in Baden the Court emphasised that in terms of working out whether the error has affected the issue of the verdict, one needs to look at what possible effect it could have had.  That is exactly what the majority did.  The majority said it had no effect.  It could not have had any effect because there was no evidence.

So, in my submission, it is not a situation simply of saying – I mean, there may well be cases where, with this error, one could not have taken into account the verdict.  But here one is dealing with a different situation because, having looked at what effect it had, it had none because there was no evidence.  One is left with the second incident.  The fact, with respect, that it is eyewitnesses, in my submission, does not detract from the Court’s ability given the CCTV and the evidence of the pathologist in terms of the blow to the face.

Secondly, can I make another observation.  The ground of appeal actually is based on the proposition that there is evidence capable of establishing the first incident.  There is not.  If there is no evidence capable of establishing the first incident, the ground of appeal goes, with respect.

BELL J:   Can that be right when it is how the case was put?

MS ABRAHAM:   In my submission, because a jury acts on evidence – so, it is 308 is the ground of appeal ‑ ‑ ‑

BELL J:   Yes.

MS ABRAHAM:   If the jury is directed to act on the evidence and we accept that juries follow that, in my submission, the majority is perfectly correct to say it is unreasonable.  No reasonable jury would have found that because there is no evidence.  It cannot elevate – it cannot create evidence.  It would assume, in my submission, that the jury has not followed its oath and just decided on what the Crown said, ignoring that you cannot see it.  I might add that we say it is not open, but if you found it on that, when there is no evidence, one would have thought one would have also found it on the second fall, of which there was all the evidence.  Those are my submissions.

BELL J:   Thank you.

KIEFEL CJ:   We do not need to hear further from you, Mr Dhanji.  There will be a grant of special leave, limited to ground 1.

MR DHANJI:   May it please the Court.

KIEFEL CJ:   Time estimates?  No more than a day, but would it be more likely to be half a day?

MR DHANJI:   More likely to be half a day, given how quickly your Honours seized me of the issues.

KIEFEL CJ:   Yes, thank you, Mr Dhanji.  The Court will adjourn to reconstitute.

AT 11:40 AM THE MATTER WAS CONCLUDED