MAK v The Queen, MSK v The Queen

[2005] HCATrans 22

[2005] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S368 of 2004

B e t w e e n -

MAK

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S369 of 2004

B e t w e e n -

MSK

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 FEBRUARY 2005, AT 10.15 AM

Copyright in the High Court of Australia

__________________

MR A.W. STREET, SC:   May it please the Court, I appear with MR G.D. WENDLER for the applicants in each of these matters.  (instructed by North & Badgery Solicitors)

MR R.D. COGSWELL, SC:   May it please the Court, I appear with MS A.M. MITCHELMORE for the respondents in each of the matters.  (instructed by Solicitor for Public Prosecutions (NSW))

McHUGH J:   Yes, Mr Street.

MR STREET:   If your Honours please. These applications arise out of an extraordinary piece of legislation passed in New South Wales, being section 294A of the Criminal Procedure Act 1986. That legislation took away the right of an unrepresented accused to confront and test the evidence of the complainants. Your Honours, there are three grounds that we seek to raise in support the application for special leave.

GUMMOW J:   Wait a minute, “took away the right” is somewhat encapsulating it, is it not?

MR STREET:   Your Honour, I will develop it if I may.  There are three grounds which we seek to identify, your Honours.  The first ground is that this legislation undermines the integrity of the Supreme Court of New South Wales and that the legislation is invalid upon application of the Kable principle.  The second constitutional invalidity ground that we seek to raise is that this legislation offends an inviolable feature of the constitutional right to a fair trial, that is the right to cross-examine and test the evidence of an accuser. 

McHUGH J:   In what sense do you use the term “constitutional”?  There is no federal jurisdiction here, is there?

MR STREET:   Your Honour, we respectfully submit that there is such a constitutional right to be found which in essence is implicit in Chapter III and the structure and text of the Constitution in relation to the criminal justice system in our constitutional democracy.

Your Honours, the third ground, if I could identify it as such, is one of an error of law by the Court of Criminal Appeal in application of section 6 by failing to focus upon the effect of section 294A in the trial of the two applicants where the testimony of the complainants was one which was dependent for the convictions on each of the counts on which they were convicted.

Can I turn to the first issue in relation to the Kable ground.  In our respectful submission, this case is quite different from that determined in Fardon and in Baker.  So far as the position in Baker is concerned, there, as your Honours will recall, there was a concession that the Commonwealth could have passed such legislation.  So we immediately say that this case is distinguishable from the deliberations in that decision.  Moreover, in this case the legislation, 294A, went to the heart of the trial process, the heart of the conviction.  In both Fardon and in Baker, one was dealing with legislation concerning people who had been convicted. 

Your Honours, the major distinction in relation to Fardon is that in that case the legislation involved a judicial process. This legislation involves no judicial process. The work done by section 294A is to impose in mandatory terms an obligation upon the court hearing the trial to interfere with the arena and descend down with its authority and appoint a statutory examiner.

GUMMOW J:   Well, does the section say how the court finds this person?

MR STREET:   No, your Honour, and what it requires the court to do is to deliberate upon this executive function.  It is one which is not of an adjudicative process and it is one which, in our respectful submission, goes to the very heart of the exclusivity of the judicial process in a trial requiring the court to perform an executive function.  That function is deliberating upon and considering who might be an appropriate representation for this statutory purpose.  It gives the courts imprimatur and by the court’s own hand it descends into the arena of representation of the accused in the very trial.

GUMMOW J:   Anyhow, in this present case, looking at page 277, before we get too swept up in it all, arrangements were made to have the opportunity of an experienced barrister as the appointee at no cost, and that was declined.

MR STREET:   But, your Honour, the absence of legal representation does not justify the destruction of the right of an unrepresented accused to test the evidence of an accuser.  The foundation, if I may say in respect to this legislation, is one which can perhaps be tested by going back a few centuries to those that determined ‑ ‑ ‑

GUMMOW J:   Well, if you go back a few centuries you find a lot of criminal process in which there was no possibility of legal representation, which seems not a desirable state of affairs.  The common law is not all that an attractive historical basis for you to keep harking back to.

MR STREET:   I understand that, your Honour.

GUMMOW J:   People were tried for felonies and they could not ‑ ‑ ‑

McHUGH J:   It was not until 1836, was it, that the Treason Felony Act was passed giving a right of legal representation, if I remember rightly. 

GUMMOW J:   That has always been thought of as a very appropriate step to be taken.

MR STREET:   Well, your Honour, it would be extraordinary though that recognition of an entitlement of an accused to seek representation is construed as in some way destructive of the rights of an unrepresented accused, because that is the effect of what is done.  If I can go back in relation to the proposition of a few centuries earlier, in relation to those that made the so-called laws in procedures by which someone was determined whether or not they were a witch, the procedures involved one where the alleged witch had no opportunity to test and confront the evidence of the victim or complainant.  That was done based on, in our respectful submission, fundamentally flawed moralising.  It is the same fundamentally flawed moralising that one finds in the ‑ ‑ ‑

McHUGH J:   Leaving aside witches, until 1898 in England and I think 1891 in one of the Australian States, the accused person could not give evidence. 

MR STREET:   Your Honour, insofar as I am seeking to develop the argument, what I wish to do is look at the reasoning that the Law Reform Commission in its majority advanced in support of this legislation which, in our respectful submission, was fundamentally flawed because it assumes, as one would have in the witch trial, the guilt of the accused. The presumption of innocence which is, in our respectful submission, central to the criminal administration of justice in our constitutional democracy is undermined by the court’s own hand required by the legislature through section 294A to descend into the arena to appoint a statutory representative whose function, if I might say in answer to your Honour Justice Gummow, is a function to ask questions as directed by an accused. When that elevated itself to equivalent to the art of cross-examination, it is a matter we would have said is completely flawed.

McHUGH J:   But the Supreme Court makes a number of appointments, does it not?  It makes appointments in relation to liquidators, receivers ‑ ‑ ‑

MR STREET:   But, your Honour, the statutory function in the present case when one looks at section 294A is one which the statutory examiner is required to ask such questions as directed by the accused. To equate that with providing a right of cross-examination is to lose all the flexibility of closing the gates involved in the art of cross-examination raised by those such as Mr Smyth and, insofar as it provides some mechanism, it still destroys the right for the unrepresented accused.

McHUGH J:   Well, supposing the State of New South Wales abolished the right of cross-examination in all cases.  Why could it not do that, except when the court was exercising federal jurisdiction?  How does that infringe the Kable ‑ ‑ ‑

MR STREET:   Your Honour, because it undermines the integrity of the Supreme Court of New South Wales and the public confidence in that court, and it must do so.  That is the vice on the first ground in respect of this legislation.  It undermines the integrity of the Supreme Court of New South Wales by requiring it to proceed on a farcical exercise of convicting an accused without testing the evidence that was central to that conviction.  In each case the complainant’s evidence was vital to the success of each of the counts upon which they were convicted.  That evidence was untested.

McHUGH J:   But these are the cries of a common lawyer.  The procedures of courts are not set in concrete.  Parliament is entitled to take the view, surely, that in certain cases the common law tradition, common law procedures and principles, need to be modified.  The Chief Judge at criminal law in this particular case stated the reasons why such an arrangement as provided for in 294A is understandable and acceptable. 

MR STREET:   Your Honour, in relation to those reasons, the first identification of error in them I sought to make was the flaw in respect of the reasoning of there being some moralistic reason for protecting such person.  That reasoning is, in our respectful submission, founded on the erroneous premise of a presumption of guilt.  The second ground advanced is one ‑ ‑ ‑

McHUGH J:   Not founded on a presumption of guilt; founded on experience that it is a traumatic experience for many complainants in rape cases to have to confront the cross-examination in person of the accused, who in a substantial number of cases has in fact raped them as found by the juries’ verdicts.

MR STREET:   And your Honour’s own explanation advances the very presumption that is manifest in this section, which is the presumption with the court’s authority, of an assumption of guilt.  It is that assumption of guilt that is part of the vice in undermining the integrity of the Supreme Court and undermining the public confidence in the system that permits such to take place. 

Your Honours, could I just deal with the second ground that was advanced which was a balancing exercise that your Honours will recall in the judgment of the Chief Judge.  In relation to that, what was embarked upon was balancing the risk of being demeaned against the risk of being convicted of a heinous crime with life imprisonment.  That is no balancing exercise at all, in our respectful submission, to suggest that the potential for being demeaned, which arises in every case in respect of every witness, could justify destruction of the right to test and confront the evidence of a complainant in a criminal trial.

McHUGH J:   The accused gets the choice of counsel.  True it is that the court appoints the person, but the court appoints guardians ad litem and so counsel do the cross-examination.

MR STREET:   Your Honour, there are a number of material distinctions between the appointment in exercise of a judicial discretion of liquidators and the like.  This act was not a judicial act.  This act of appointment was not subject to judicial review.  This act required the court to descend into the arena in respect of the representation of the accused.  This act required the court to deliberate upon a partisan matter.  This act required the court to engage in a partial act descending into who would represent this statutory accused in front of the jury contrary to the procedure that has been adopted for all other witnesses.  The only assumption the jury can have is that the court is lending its imprimatur to the presumption of guilt underlying the taking away of this right. 

Your Honours, could I then touch upon, very briefly, the second ground that we seek to advance and that is a constitutional right to a fair trial.  If I could just in that regard touch upon what was said by your Honour Justice Heydon and his Honour Justice Callinan in the decision in Fardon where your Honours touched upon the proposition that there could be no Bill of Attainder or no Bill of Pains in paragraph [218] in the decision in Fardon v Attorney-General.  Your Honours, the corollary of that must be, in our respectful submission, in our constitutional democracy that there is a constitutional right to a fair trial, as identified by his Honour Justice Deane, as we have said in our written submissions.  It must follow.  If one cannot have such a procedure, there must be a procedure which is a right to a fair trial.  It must involve inviolable features. 

We respectfully submit that one of the inviolable features is the right to confront and test the accuser.  In that judgment, if I can remind your Honours, Justice Callinan and Justice Heydon at paragraph [221] refer to the prisoner having “full rights to cross-examine and to adduce evidence.”  The right to cross-examine, we respectfully submit, is an inviolable feature of the constitutional right to a fair trial and that issue, in our respectful submission, arises in this case.

Your Honours, the third ground, if I may say, arises from the application of section 6 where in essence what the Court of Criminal Appeal did was assume that because section 294A was on its determination a valid piece of legislation, there could be no miscarriage of justice. That failed to look at the effect in the trial of the applicants of 294A. In this trial, the conviction on all counts of the applicants was dependent upon the evidence of the complainants. Section 294A in this trial took away the entitlement to cross-examine those complainants. The effect of that, in our respectful submission, was a miscarriage of justice. It is no answer, as the Court of Appeal has propounded, to say that 294A was constitutionally valid if that were accepted.

McHUGH J:   Miscarriages of justice do not exist in the air.  They are miscarriages of justice according to law.

MR STREET:   And a miscarriage of justice ‑ ‑ ‑

McHUGH J:   If the law requires a certain arrangement as in 294A, how can it be a miscarriage of justice?

MR STREET:   Because, your Honour, one is reading into section 6 a criterion that is not there and assuming that the statutory test required by section 6 has no work to do outside the application of the rules of law.  What section 6 does is require a test to be applied as to whether the effect in the circumstances of the trial there was a miscarriage of justice. 

McHUGH J:   Would you give me an illustration of a miscarriage of justice for the purpose of section 6 which does not involve a breach of a rule of law of any kind?

MR STREET:   Let us advance it, your Honour.  Why not take away the right to cross-examine all Crown witnesses?

McHUGH J:   Can I have an answer?

MR STREET:   Yes, your Honour.  If one has legislation that takes away the right to cross-examine all Crown witnesses.  In a case which goes to trial and in respect of which there is said to be a compelling case because there has been no cross-examination of those witnesses, it cannot possibly be held to be that that legislation when the accused joins issue and pleads not guilty is not one in which there has been a miscarriage of justice.

McHUGH J:   But what is the rule of law that has been breached.  It cannot be the right to a fair trial because the right to a fair trial must be governed by the law. 

MR STREET:   But, your Honour, to the extent that one is looking at applying a statutory criterion for review of a decision, which is what section 6 is doing, it matters not whether the conduct might strictly have been lawful.  What matters is whether the effect of that lawful provision created a miscarriage of justice and that requires one to look at the trial, as your Honour says.  Here there was a joinder of issue.  That joinder of issue involved the evidence of the complainants being decisive.  They were not permitted to test that evidence.  In those circumstances we say the effect of that trial of my clients in this case was that there was a serious miscarriage of justice.  Your Honours, those are the three grounds we seek to advance.

GUMMOW J:   Why is there a miscarriage of justice?

MR STREET:   Because, your Honour, the evidence of the respective complainants ‑ ‑ ‑

GUMMOW J:   The Court of Criminal Appeal is exercising federal jurisdiction because this question of validity had been raised but they decided that the law was valid, so where do you get to miscarriage of justice?

MR STREET:   Your Honour, because when one applies the language of section 6, which requires one to look to see whether there was a miscarriage of justice, what one has to do is look at the effect of that which occurred with the accused in that trial and it is descending into the facts and no doubt, if there had been a plea of guilty, if there had been a limited issue, if the case had not depended on the complainants’ evidence, one might well have circumstances where section 6 did not apply, but in this case it was the evidence of the complainants that was fundamental to the entitlement to succeed on the counts on which the applicants were convicted.  If the Court pleases.

McHUGH J:   Yes, we need not hear you, Mr Cogswell. 

The Court is of the opinion there was no reason to doubt the correctness of the decision of the Court of Criminal Appeal. 

The applications for special leave to appeal are refused.

AT 10.34 AM THE MATTERS WERE CONCLUDED