Leach v Director of Public Prosecutions (Cth)

[2019] HCATrans 138

[2019] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B23 of 2019

B e t w e e n -

PHILIP DENIS LEACH

Plaintiff

and

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON TUESDAY, 25 JUNE 2019, AT 9.15 AM

Copyright in the High Court of Australia

MR P.J. DUNNING, QC:   May it please the Court, I appear with my learned friend, MR B.A. BLOND, for the plaintiff.  (instructed by Pharmacis Canning)

MR L.K. CROWLEY, QC:   May it please the Court, I appear with my learned friend, MS A.C. FREEMAN, on behalf of the defendant.  (instructed by Director of Public Prosecutions (Cth))

HIS HONOUR:   Thank you, Mr Crowley.  Mr Dunning.

MR DUNNING:   Thank you, your Honour.  Your Honour, the parties have been unable to find agreement on the appropriate course for the proceedings.  The extent of the controversy between the parties in one sense seems to be complete.  The plaintiff contends it is a matter that is appropriate for a special case to be referred to the Full Court.  The CDPP suggests it should be remitted to the District Court to be determined in that court, although there is no application at the moment on foot for remitter.  The competing arguments are set out in the written outlines.

HIS HONOUR:   Yes, you can take it, Mr Dunning, that I have read those submissions, including your recently filed submissions in reply and that I have formed a preliminary view that remitter is appropriate.  Now, it seems to me that the application that you currently have in the District Court is an application in respect of which substantial evidence has been filed, as I understand it.

MR DUNNING:   There are a couple of affidavits, if that passes as substantial evidence.

HIS HONOUR:   I take it that that evidence covers much of the substratum of fact that you would be seeking to base your constitutional argument on.

MR DUNNING:   I cannot give your Honour a specific answer to that because I have not been involved in that.  I only became involved in the matter shortly after 10 April and so I was not a part of the application in the District Court.  I understand that application…..something of it, does raise some allied issues, but is largely the sorts of discretionary considerations, including going to a stay, that are not a feature of this application.

HIS HONOUR:   Yes, in very broad terms, it is about the fairness or possible fairness of the trial.

MR DUNNING:   In the District Court, yes.

HIS HONOUR:   Yes.

MR DUNNING:   Whereas the proceedings – I do not mean to cavil with your Honour if your Honour has made a preliminary view.

HIS HONOUR:   No, I do not want you to stop me – I do not want to stop you from attempting to persuade me to the contrary.

MR DUNNING:   Well, your Honour, I will not rehearse those things that are set out in our written submissions, but there are two matters if I could expand upon to make the point.

HIS HONOUR:   Yes.

MR DUNNING:   The first is the considerations alive in the District Court are largely discretionary, though there is a Kable point raised.  The points that are agitated in the original jurisdiction of this Court are not discretionary points.  They may require some evaluation but ultimately if the contention which Mr Leach asserts is correct, then it would not be a matter of discretion.  He would have a constitutional entitlement to an accusatorial trial.  It would no longer be possible there could be a trial.  Now, that is simply not the case as presently framed in the District Court.  They were invited to agitate that in the District Court.

In our submission, meaning no disrespect to the District Court of Queensland, it is not an apt jurisdiction compared to this Court to agitate that issue because it really invites in effect where this Court ultimately lands after Strickland in relation to the question of that line, as it were, between what is the…..of offence and what is the determination of offence.  So that is the first matter that, in our submission, just is not apt for resolution in the District Court and is peculiarly apt for resolution in this Court.

Allied to it is the fact that there are already findings in the Court of Appeal in relation to how this evidence was used.  Now, the prosecution say, well, the issue in the Court of Appeal was how the alleged lies were used at the trial.  No doubt that is the basis upon which the conviction was quashed.  But the Court of Appeal necessarily had to consider the evidence that had been obtained via the compulsory examination and how it was used, and their findings, as we have endeavoured to set out, are wider than the prosecution contend and in a way that the prosecution may not have liberty, though it seems it intends to, depart from either in this Court or in the District Court.  That is, that the pervasive use of the interview to take statements and meet those defences that Mr Leach had been forced to reveal in the compulsory interview are matters that are now settled between the parties as a result of the Court of Appeal decision, albeit they stand to be illuminated by reference to the specific statements and the transcripts of evidence. 

So, as far as one can see, it appears to be an apt vehicle for a special case because it does not involve the factual controversy that attends every special case in a sense, but would have a difficulty that a District Court judge would ultimately be asked the two questions we pose in this Court, and ultimately that is a question that has not yet been answered and the District Court judge will have obviously the guidance of those case leading up to Strickland, but that will identify the question perhaps rather than provide the answer.

HIS HONOUR:   Am I right in thinking that the scope of any issue estoppel that arises from the judgment of President Sofronoff is controversial?

MR DUNNING:   I sense that from the written submissions.  It is not said in terms, though we have made the point not only in our statement of claim, but again in correspondence and in our written submissions, both primary and in reply.  Now, the prosecution’s reply submissions do not expressly say that they cavil with the proposition that there is an issue estoppel, or some of the nomenclature is it would be an abuse of process to depart from those findings. 

Now, in a sense that is hardly surprising because that is settled law and there seems to be no application to reopen that topic.  So it is hinted at, as it were, but it is not expressly said, but that should not be reason not to refer, in our respectful submission, because that is simply answered by the law is as set down in Rogerson v The Queen and the cases that have followed it.  The findings of President Sofronoff are the findings of President Sofronoff, focused…..law and, to the extent they require illumination, one can uncontroversially refer to the witness statements and the transcript of evidence and compare that with the transcript of the compulsory hearing.  So that is the first topic as to why a referral in this Court is appropriate and it is concomitant that remitter to the District Court is inappropriate, in our respectful submission.

The second matter is it is asserted against our side that this would involve fragmentation of the criminal process, and that is a submission we would invite your Honour to reject.  Mr Leach has already been put to a trial that was not a fair trial over his objection on precisely the point on which he succeeded in the Court of Appeal.  He has spent more than a year in custody, his position is that he is innocent, and the consequence of the remitter is that he potentially faces exactly the same prospect again; that is, he fails in the 590AA application in the District Court, let us say, because the District Court judge says, “Well, I do not think the law goes far enough for me to say that there exists the right to an accusatorial trial.  That is a matter for the High Court to determine”.

HIS HONOUR:   It seems to me from that submission that your real complaint is with the order made by the Queensland Court of Appeal for a retrial.

MR DUNNING:   I understand the point that your Honour is putting to me, but this particular point was not before their Honours and in a sense a considerable basis for the bringing of it in the way that it is now framed is as a result of their decision.  So this is not a case, in our respectful submission, where one would say, well, what you should do is even now seek special leave to appeal against the decision of the Court of Appeal out of time to order a new trial instead of quashing it, because this argument was not run before the Court of Appeal.

HIS HONOUR:   Was there argument before the Court of Appeal about the appropriateness of a retrial, as distinct from acquittal?

MR DUNNING:   It seems from the transcript that the matter never really gets canvassed in argument.  It seems that what occurs in the Court of Appeal is there is argument on the day on the strength of written submissions and oral argument.  It is then suggested to counsel for Mr Leach as a result of some exchanges that further written submissions be provided and whilst in a sense there is some controversy on what gets provided, what ultimately gets provided, it seems, are the written submissions that had been relied upon before the District Court judge on the 590AA application some years earlier, and that is the basis upon which the President Justice Philippides acted to come to the view that their Honours did, and their Honours did not have occasion, because the point did not arise, to deal with the issues that are asserted in the original jurisdiction of this Court. 

It would be fair to say that, as I submitted earlier, an important part of the basis of bringing it in this Court is the benefit of the findings that have now been made in the Court of Appeal because it is now settled between the parties that the transcript was used for the purpose of gathering evidence and calling witnesses to answer – the answers or exculpatory matters Mr Leach had.  So it is squarely in the range of that issue that is presented by Strickland of somebody who is denied an accusatorial trial because the Crown might have had…..to deal with because the accused will have been forced to explain how he might conduct his defence.  That is not a matter that could have been brought prior to those findings of fact.  I am sorry, Justice Gageler, it is a very long way of answering your Honour’s question.

HIS HONOUR:   Yes, I understand the answer, thank you.

MR DUNNING:   Yes.  The second consideration, your Honour, which whilst personal considerations are not everything in this Court they nonetheless, in our submission, speak powerfully.  I am sorry, I think I have already dealt with that.  Mr Leach is exposed to the prospect of a second term of imprisonment. 

HIS HONOUR:   Yes, you have made that point.

MR DUNNING:   I am sorry, I did say that.  Beyond what we have set out in writing, or subject to any questions your Honour might have, they are the bases why we say the matter should be referred now.  One alternative basis would be for the CDPP to put on a defence and the plaintiff to put on a reply, perhaps including the plaintiff to particularise those matters set out in its statement of claim to make good the point I have made the submission on; that is, a combination of the findings of fact and the uncontroversial written statements and transcript of evidence. 

If the plaintiff particularised that, the defendant put on a defence and the plaintiff put on a reply in this Court, in our respectful submission, it would become apparent that there is not the controversy that the prosecution contend for in their submissions before your Honour.  Similarly, that the issue is not a discretionary one and therefore is one apt for resolution in this Court, so that in the absence of an application for remitter, if your Honour is not minded to refer it, the appropriate course, in our submission, would be to review the matter at the end of the pleadings.

HIS HONOUR:   Under the rules, there is no requirement for an application for remitter.  You are not suggesting that you have been unable to say everything that could be said against remitter today?

MR DUNNING:   No, I am not.  I am picking up what Chief Justice French said in Alqudsi in that regard.

HIS HONOUR:   Yes, very well.  Thank you, Mr Dunning.

MR DUNNING:   Thank you, your Honour.

HIS HONOUR:   Mr Crowley, I do not need to hear from you, thank you.

MR CROWLEY:   If your Honour pleases.

HIS HONOUR:   The plaintiff, Mr Leach, was prosecuted by the defendant, the Commonwealth Director of Public Prosecutions, in the District Court of Queensland on charges of offences against the Criminal Code (Cth) and an offence against the Criminal Code (Qld), and was convicted. He appealed to the Court of Appeal of the Supreme Court of Queensland. That Court by majority quashed the convictions and ordered a retrial. The majority did so on the basis that use by the defendant for the purpose of the prosecution of information obtained from the plaintiff in a compulsory examination conducted under section 350‑10 of Schedule 1 to the Taxation Administration Act1953 (Cth) constituted a miscarriage of justice.

The defendant has since taken steps to appoint a new prosecution team and to quarantine the information obtained from the plaintiff in the compulsory examination.  The plaintiff maintains that those and such other steps as may be taken by the defendant are insufficient to prevent a miscarriage of justice from occurring at the retrial.

The plaintiff has brought a pre‑trial application in the District Court under section 590AA of the Criminal Code (Qld) for a permanent stay of the retrial. The parties have filed evidence and submissions on that application. The hearing of that application, I am informed, currently stands adjourned.

By a proceeding commenced in the original jurisdiction of this Court, the plaintiff seeks declarations to the effect that the conduct of the retrial would infringe his constitutional right to a fair trial and would involve the District Court in an activity repugnant to its role as a repository of federal jurisdiction.

The plaintiff seeks directions to facilitate his entitlement to the relief sought being determined by the Full Court of this Court by way of special case. The defendant seeks an order under section 44 of the Judiciary Act1903 (Cth) remitting the proceeding to the District Court.

I propose to adopt the course suggested by the defendant.

As the decision of Chief Justice French in Alqudsi v The Commonwealth (2015) 90 ALJR 192 at 195‑196 [20]‑[23]; 327 ALR 1 at 6; [2015] HCA 49, to which the plaintiff refers in his written submissions, well enough illustrates, the jurisdiction of this Court to entertain a proceeding for a declaration in relation to a pending criminal proceeding is exercised only in the most exceptional circumstances. The concern is not just to avoid fragmentation of the criminal process, but to preserve the integrity of the appellate structure and to ensure the appropriate use of this Court’s limited resources. The circumstance that an accused seeks to assert a constitutional basis on which a pending criminal proceeding is incapable of being constituted is, without more, insufficient to meet the description of exceptional, nor does it take the matter further to point out that the accused in this case is facing a retrial as distinct from an original trial.

In this case it is apparent that the relief sought by the plaintiff is founded on a substratum of fact which is not wholly uncontested.  It is also apparent that the substratum of fact overlaps substantially, if not entirely, with the substratum of fact for the permanent stay which the plaintiff is currently seeking in the District Court.  That Court is plainly in a position to make such findings of contested fact as may be required and, in the first instance, to undertake the requisite evaluation of whether the retrial can be fair.  That is what should occur.

The orders I make are as follows:

1.The proceeding be remitted to the District Court of Queensland at Brisbane.

MR DUNNING:   Yes, with respect, your Honour.

HIS HONOUR:  

2.The proceeding continue in the District Court of Queensland as if the steps already taken in the proceeding in this Court had been taken in that Court.

3.The Registrar of this Court forward to the proper officer of the District Court of Queensland photocopies of all documents filed in this Court.

4.The costs of the proceeding in this Court be costs in the cause.

5.The costs of the proceeding to the date of this order be according to the scale applicable to proceedings in this Court and thereafter be according to the scale applicable in the District Court of Queensland and in the discretion of that Court.

Thank you, gentlemen.

MR DUNNING:   May it please the Court.

AT 9.35 AM THE MATTER WAS CONCLUDED