Marotta v Reg

[1998] HCATrans 366

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P5 of 1998

B e t w e e n -

JAMES LUIS MAROTTA

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P8 of 1998

B e t w e e n -

RODNEY WILLIAM KING

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P9 of 1998

B e t w e e n -

CHRISTOPHER JOHN BULL

Applicant

and

THE QUEEN

Respondent

Applications for bail

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 19 OCTOBER 1998, AT 4.42 PM

Copyright in the High Court of Australia

MR R. K. WILLIAMSON:   May it please your Honour, I appear for applicants, Marotta and King, (instructed by Williamson &Co), and I appear on behalf of applicant, Bull, (instructed by Messrs Bayly and O’Brien).

MR J.R. McKECHNIE, QC:   If your Honour please, with my learned friend, MS V.R. CAMPBELL, I represent the Crown in all three applications.  (instructed by Director of Public Prosecutions (Western Australia))

HIS HONOUR:   I am sorry I was late; I had to look at some other papers.  Mr Williamson.

MR WILLIAMSON:   Your Honour, I submit that the judgments of the Court of Criminal Appeal point to the exceptional circumstances which would invoke the extraordinary jurisdiction of this Court to grant bail.

First of all they show the strong merits of the case, and the merits of the case, I submit, can certainly be described as “reasonable”, the word used by his Honour Justice Dawson in the Peters Case.

HIS HONOUR:   Mr Williamson, I wonder if I could ask you - I do not want to interrupt you, but why do you say - what is the point of principle that you say would get you a grant of special leave?

MR WILLIAMSON:   Several points of principle.  One is the question of inconsistent verdicts, your Honour.  I am saying that the court has decided that the principles applicable when the ground of appeal is inconsistent verdicts, and my submission is that this Court of Criminal Appeal decision that we are dealing here renders MacKenzie redundant because it plunges the whole ground of appeal into the depths of a distinction between, on the one hand, truth; on the other hand, accuracy; it is a distinction without any difference.

What we had here was a series of not guilty verdicts, some nine, as against four guilty verdicts.  In reconciling that apparent inconsistency, the majority of the Court of Criminal Appeal had recourse to the idea that there was a difference, when there is no difference between truth and accuracy.

HIS HONOUR:   I think I understand that.  Mr Justice Ipp thought that the matter of the handcuffs was central to the issue, and if there was no conviction on charges relating to the handcuffs then it was very difficult to justify convictions on the other matters.  I think that is right, is it not?

MR WILLIAMSON:   That was certainly right, together with his Honour’s remarks and findings that there was no difference in principle between the offences, or the allegations, which resulted in acquittals as against the offences which resulted in - - -

HIS HONOUR:   I understand that.  Obviously, for a bail application there is no need for you to develop in full your special leave points, but one is the inconsistent verdict.  Are there others?

MR WILLIAMSON:   Yes.  Following from that inconsistent verdicts point is that this would be an ideal vehicle for this Court to decide and set down the law on whether a trial judge, in a case like this one, should direct the jury against the return of compromise verdicts.  That follows on from inconsistent verdicts because if the case is such, as it was in this one, where we have a series of counts, a number of counts, relating to a series of very much interrelated and interconnected events, whereas, when we are really dealing with one transaction, one real transaction in the real world, but the indictment formally deals with say 20 or 30 counts, that the jury should be warned by the trial judge, as is the practice often, but whether the High Court should set down the law on what the trial judge should say.

HIS HONOUR:   Was there an application made for a compromise verdict direction, or direction that a compromise verdict not be given?

MR WILLIAMSON:   No, there was not.  The trial was run on the basis of all or nothing.

HIS HONOUR:   It is often a very dangerous invitation to a trial judge to say, “Do not tell the jury the compromise”, and sometimes that is a considered decision by defence counsel not to seek a direction in those terms because of the risk that it may involve.

MR WILLIAMSON:   That point was never one relied upon; either that or to any extent in the Court of Criminal Appeal.

HIS HONOUR:   All right; what do you say ‑ ‑ ‑

MR WILLIAMSON:   If they were inconsistent.  In fact, if they were inconsistent, they were inconsistent, it does not matter what happened at trial level as a point of principle.

HIS HONOUR:   What other matters do you think would justify a grant of special leave?

MR WILLIAMSON:   This would be an ideal vehicle for disentangling the test in the M Case, from the principles in the MacKenzie Case.  I submit that that entanglement has happened in the case of Jones where there were inconsistent verdicts, but the Court decided that the appeal should be upheld, using the test of M rather than the principles of MacKenzie.  This is crystal clear.  It happened, also, in this case.  In Jones at page 610, the majority says:

The proper application of the test formulated by the majority of this court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory.  Given the jury’s finding on the second count –

which was an acquitta -

it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts.

My submission is that that inconsistency raises, fairly and squarely, the principles of MacKenzie which sets out the law regarding inconsistent verdicts.  The M test is, in shorthand, an “open to convict” test.  M says that the appeal court will set aside a conviction if, on the evidence, it was not open to convict.

The trouble with Jones, I submit, is that it puts a verdict in a category of evidence.  It says the jury got it wrong under M when - or the jury was unreasonable to acquit on the one hand and convict on the other.  That is not using M, that is using MacKenzie.  M deals with evidence, and a conviction or an acquittal, a verdict is not part of the evidence.  This case, I submit, would be an ideal case for the Court to deal with that point, and say - and if I am right it would say - that we must be careful about how we deal with M.  M is about evidence.  Inconsistent verdicts is not part of evidence.  When the appellant argues inconsistent verdicts we go to the principles of MacKenzie.

The next two points that should attract special leave, I submit, are special leave questions 4 and 5, and that is when looking at this trilogy of sections in the Evidence Act it is necessary to have regard to the purpose for which the evidence is adduced.  Now, put in very bald terms, without looking at the provisions of the Evidence Act, it, in very bald terms, says that evidence is not admissible if it deals with matters of a sexual nature.

HIS HONOUR:   I must say I thought your 36B point was your best point, really.

MR WILLIAMSON:   Is that 36B and 36BA and BC?

HIS HONOUR:   BA, I am sorry, I think it is, yes.  This is the matter relating to the telephone conversation.  I think I understand the points.

MR WILLIAMSON:   It might be my best point in your Honour’s view, and I do not obviously quarrel with that.

HIS HONOUR:   It does not mean that it is a point that is necessarily going to prevail but ‑ ‑ ‑

MR WILLIAMSON:   But my submission there, your Honour, is that they are all very strong points, and that is why we make the bail application.

HIS HONOUR:   Let us assume that you have an arguable application for special leave.  Make that assumption for present purposes.  When would your clients be released under normal circumstances?

MR WILLIAMSON:   That is all set out in the affidavits, your Honour.

HIS HONOUR:   I did not quite follow it.  It was suggested that one would be released next year, is that right?

MR WILLIAMSON:   Yes, one next year – two next year.

HIS HONOUR:   What dates are those?

MR WILLIAMSON:   Those dates appear – I can just put it in this way, your Honour, without looking at the affidavits ‑ ‑ ‑

HIS HONOUR:   The earliest date for Bull is 31 October 2000.

MR WILLIAMSON:   Yes, he got eight years, so he has to wait a fair bit longer. 

HIS HONOUR:   That means the others ‑ ‑ ‑

MR WILLIAMSON:   Mr King has 82 months to go, basically, your Honour.  They have all done 152.  Mr Marotta has 16 months to go, and Mr Bull has a lot longer to go.  There is no doubt about it that Mr King’s argument in respect of this point is much stronger, and Marotta’s is stronger than Mr Bull’s.

HIS HONOUR:   Mr Williamson, the application, I think, in each case was filed in February this year.  Is that right?

MR WILLIAMSON:   I have no reason to disagree with that.

HIS HONOUR:   I think that is correct.

MR WILLIAMSON:   It was filed on time.

HIS HONOUR:   You might have your instructing solicitor check that.  Order 69A requires that your summary of argument, or your outline, be filed within 28 days.

MR WILLIAMSON:   Yes, there is no doubt in the world that it was late, your Honour.

HIS HONOUR:   It is exceedingly late.  It is late by more than six months, I think, which really is an unfortunate basis for you now to be seeking any form of indulgence or expedition.

MR WILLIAMSON:   The only prejudice caused to anyone by that is to my clients.

HIS HONOUR:   It makes much less persuasive any argument that these people should be released on bail pending the hearing of an application for special leave.

MR WILLIAMSON:   There are reasons for the delay, your Honour.

HIS HONOUR:   But they are not explained in any of the material.

MR WILLIAMSON:   That point was not raised until I got submissions today from the respondent.  I do not complain about the lateness of the submissions, but all I can do is tell you from the Bar table why they were late.

HIS HONOUR:   It is not the right way to give evidence.  I do not know whether Mr McKechnie has any view about that.

MR WILLIAMSON:   It is not particularly controversial.  It is a question of when legal aid was granted; the resources available for the appeal; the extent of legal aid, and the bottom line is that this appeal is, it has been taken, is a David and Goliath affair.

HIS HONOUR:   They always are.

MR WILLIAMSON:   Yes.

HIS HONOUR:   Well, mostly.  There are some over here that have not been, but mostly they are.

MR WILLIAMSON:   They are, and I was in touch with the office of the High Court Registry very much aware of the problem with the delay, and was told to basically get everything in within six months, which is what happened.  Your Honour, it is just physically impossible for a tiny office like mine to get the research done, the submissions done, in the time that was given.  We got legal aid which is effectively nothing.  It is effectively a pro bono job, and it is very easy for someone to say it should have been in within 21 days, but it is just physically impossible. 

Notice of the grant of legal aid was not received until May, so, in effect, time starts to run then.  Mr Bayly for Mr Bull and myself were the other two.  I am a solo practitioner.  I do not employ anyone.  I had to do it all myself.  It is just very difficult, your Honour.  Whilst formally it looks unhappy and unhappy circumstances, the reality is that it is just a difficult thing.  My submission is that the clients should not suffer as a result.

There is another circumstance which I submit is an exceptional circumstance, your Honour, and that is the way the question of this evidence of the phone call has been dealt with judicially right from the start.  At the trial there was an application by the Crown to delete from their video, their police video of the interview between Mr Bull and the police, certain parts of Mr Bull’s answers to questions, those parts relating to the phone call and other things, and related things; but for the purposes of today, the phone call.

Her Honour, the trial judge, said that the Crown could not do that, and by way of obiter said, about the contents of the phone call, that they were not evidence of disposition in sexual matters; that they were not evidence of disposition in sexual matters, that they were part of Mr Bull’s version of events.  In her published reasons the learned trial judge said that they were part of Mr Bull’s defence and that the jury would not be able to understand what Mr Bull wanted to say without that going in.  So, the door was opened to the defence to admit that evidence.

Then, it was closed by her Honour, the same trial judge later, because the Crown elected not to put the video into evidence, so the complainant gave evidence.  Mr Bull’s counsel wanted to cross‑examine the complainant about the phone call because the complainant said, “I was there at that hour to look at photos”.

HIS HONOUR:   I understand all that.  It did give rise, perhaps, to a difficult situation for the defence, perhaps, yes.

MR WILLIAMSON:   Impossible, I would submit.

HIS HONOUR:   I understand that as part of your special leave point.

MR WILLIAMSON:   Her Honour then decides on the application to cross‑examine pursuant to that trilogy of sections.  Her Honour decides that that evidence is evidence of disposition of sexual matters, even if it is relevant.  Even if it is unfair to the accused, it is out.  It stays out.  Her Honour said that:  relevance and unfairness become non‑issues if it is disposition.  There is no discretion, that is it.  So, it was closed off.  Not surprisingly, so the door was closed during the trial.  Come the appeal in the Court of Criminal Appeal, the door is opened when the Crown concedes that that evidence was relevant and that it should have been admitted, and they did that in the most crystal clear written terms.

Not surprisingly, all members of the Court of Criminal Appeal through his Honour Justice Pidgeon, the presiding judge, advised counsel that we have got up on that point, that its relevant, it should have gone in; should have been cross‑examined on.  The only potentially live issue at the Court of Criminal Appeal was whether or not the proviso applied.  We all walk out of the courtroom, the door having been left open to that evidence.  It is then closed by the majority of the Court of Criminal Appeal reversing that Crown concession.

A reversal of a Crown concession, perhaps, is not exceptional; it is unusual, but, perhaps, not exceptional, but doing it in the absence of counsel is, I submit, exceptional, because it is a denial of procedural fairness.  Counsel for these three applicants were not able to address the majority on whether that Crown concession should be reversed.  We argued the proviso.  I know there is an affidavit saying otherwise, but I can hand up to your Honour the submissions filed by the respondent at the Court of Criminal Appeal.  Your Honour only needs to look at paragraph 1 which says:

The respondent concedes that evidence of the content of the telephone conversation…..was admissible on the basis outlined by Her Honour the trial Judge at AB Vol II p 207 F‑G.  However, the exclusion of that evidence has not resulted in a substantial miscarriage of justice.

The reasons I refer to I also hand up, your Honour, where her Honour the trial judge says, as I said before, “They” – that is those issues and the phone call:

are not, in my view, evidence of her disposition but evidence of what was discussed between herself and the accused Mr Bull that night and it will be a matter for the jury –

to decide whether those things were said:

It does not seem to me the jury could understand the conversation as Mr Bull explained it to the police without the background of what Mr Bull understood the complainant’s sexual fantasies were…..I would not think that there would be any basis on which that evidence could be excluded.

There is no doubt in the world that the respondent accepted that it was admissible, and not surprisingly, the case was argued as a proviso case on that point.  There was argument during the appeal about whether other evidence which related to the phone call and sexual fantasies and whatnot; plenty of argument about that, but it would be absurd for counsel to argue in the face of that concession that it was relevant, once they had conceded that it was relevant.

So, my submission is there that that really is a problem for the propriety of these convictions.  We have had a denial of procedural fairness which, in itself, but certainly together with, the nine convictions as against the four acquittals, with the very strong judgment of his Honour Justice Ipp, and really, your Honour, my submission in a sense obviously is that Justice Ipp is right; put another way, he is not patently wrong, and in those circumstances, your Honour, these four convictions which stand against these nine acquittals do not appear sphinx-like, but when scrutinised, as Justice Ipp has scrutinised them, they appear quite fragile and that really, a grant of bail would perfect the course of justice in this case, because what has happened, particularly with the denial of procedural fairness, is a glaring imperfection, and I pick the word “perfected” the administration of justice because that is the expression used by her Honour Justice Gaudron in Robinson, who says that bail in the High Court is to be granted to perfect the administration of justice and in the interests of justice, or words to that effect.  Thank you, your Honour.

HIS HONOUR:   Thank you, Mr Williams.

MR McKECHNIE:   If your Honour please, as to the first point, while one would have to say that there is an arguable question of fact as to the inconsistency of verdict, having regard to the majority of decision, where we would, with respect, take issue is to whether or not there is any issue of policy.  Now, of course, a factual error by a Court of Criminal Appeal does not preclude an application for special leave, but more normally there has to be a particular principle.  In our respectful submission, the Court of Criminal Appeal has made no error of principle and, in particular, we do not read M, Jones or MacKenzie as inconsistent or entangling.  The courts have purported to apply them.  They may have reached a wrong error of fact.

HIS HONOUR:   Mr McKechnie, can I tell you what my provisional thinking about the matter is.  I would be disinclined to grant bail if there

could be an early application.  Now the fact that there has not been expedition may or may not be explicable and we do know that these things can happen from time to time.  I am a little concerned, of course, that these peoples terms of imprisonment do not have very long to run and that is a matter of great concern.  I have made some inquiries; I think it likely, and I cannot say this definitely at this stage, that I could arrange for this application to be heard by video link from here to Canberra on 20 November. 

Now, I have been in touch with the Registrar and she tells me that there have apparently been some problems about the settling of the application book, but I would have thought with a measure of goodwill on both sides there would be no problem about that.  I understand your position also is that you would much prefer not to have to travel to Canberra or elsewhere to the Eastern States, just for this one application, is that correct?

MR McKECHNIE:   That is correct, your Honour, but of course, if that were the only way, we would do it, but if there were to be a video link, if it can be arranged ‑ ‑ ‑

HIS HONOUR:   Making no prejudgment at all about the fate of the application, it seems to me, provisionally, that there is certainly an arguable point with respect to the trilogy of sections, as Mr Williamson says.

MR McKECHNIE:   Or having in mind the Crown concession at the appeal, it would be hard for me to put otherwise.

HIS HONOUR:   Precisely, Mr McKechnie, so it seems to me to be certainly a very arguable point, and I express no opinion at all about the inconsistent verdicts point, but the other does strike me as certainly arguable, and you obviously made a concession very properly in relation to it.  I will ask you, would there be any difficulty then about a video link hearing on 20 November?

MR McKECHNIE:   None at all, your Honour.

HIS HONOUR:   Do you mind, I will just ask Mr Williamson about that.

MR WILLIAMSON:   No problem, I would go to Canberra myself, but that is no problem.

HIS HONOUR:   Well that is possible, you are entitled to that, of course, and Mr McKechnie may decide that that is what he would prefer to do anyway.  Well, you heard what I said Mr Williamson.  If this can be given a reasonably prompt hearing, I am disinclined to grant bail, because, as his Honour Sir Gerard Brennan said in Chamberlain, one does not treat a jury verdict as being provisional, and I think your submissions acknowledge that you have to show something fairly exceptional to get bail. 

Having regard to those matters, therefore, I would prefer to get this matter on for an early hearing and I will look at 20 November to see whether I can confirm that.  That would be by video link but, of course, you can travel there yourself.  Mr McKechnie, I will not make that decision or make an order in that regard now; I thought I might do that a little later in the week but, in the meantime, you and Mr McKechnie could consider your position.  You might be able to agree upon the form of a direction that I would prefer to give in a case like this, with respect to the preparation of the application book and settlement of the index.  I am sure, gentlemen, you could agree upon that and you can both consider your position whether you would wish to go to Canberra, either or both of you, that is, whether we should have a video link on that day or whether Mr McKechnie would wish to travel perhaps to Sydney.  If it is not a video link I think we could get you on in Sydney.

MR McKECHNIE:   Sydney would be easier.

HIS HONOUR:   It always is, yes.  What I am minded to do, therefore, is adjourn this matter for you two to consider your position, and I will make some further inquiries with respect to a hearing time and a hearing place on the twentieth.  Would that be convenient?

MR McKECHNIE:   Indeed, your Honour.

HIS HONOUR:   I do not want to cut you short, Mr McKechnie, but I have disinclination to grant bail if the matter can be brought on fairly quickly.  I am not making any decision at the moment.

MR McKECHNIE:   It would be better, in the interests of justice, if the application could be brought on quickly because if special leave were granted then the situation has changed in that respect.

HIS HONOUR:   Exactly.

MR McKECHNIE:   Our position, your Honour, is that whether the twentieth or any other date, the Crown would always be available for video link, and if the only way to get this matter on were for it to be an appearance in another State then we would, with reluctance, but we nevertheless would go.

HIS HONOUR:   All right.  I think what I will do is ask my associate to contact you both in about a day’s time; you can tell my associate what your

preference is, and then I will give a time for this matter to be reconvened, give a direction, and, I hope, a hearing date and place.

MR McKECHNIE:   We should have a draft notice for order for your Honour by then.

HIS HONOUR:   Yes, that would be convenient.

MR WILLIAMSON:   No problem with that at all, thank you, your Honour.

HIS HONOUR:   All right.  I will have this matter adjourned to a date and time to be fixed.  It will be within the next 48 hours and in the meantime you can both give some thought to what I have raised.

AT 5.10 PM THE MATTER WAS ADJOURNED