Martin v The Queen

[2015] HCATrans 273

[2015] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B5 of 2015

No B14 of 2015

B e t w e e n -

KENNETH MICHAEL MARTIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 10.46 AM

Copyright in the High Court of Australia

MR S.C. HOLT, QC:   May it please the Court, I appear for the applicant in respect in respect of both matters.  (instructed by Fisher Dore Lawyers)

MR M.R. BYRNE, QC:   If it please the Court, I appear for the respondent in both matters.  (instructed by Director of Public Prosecutions (Qld))

KEANE J:   Mr Holt.

MR HOLT:   May it please the Court.  If I could deal with first, because I can do it briefly, the application in B5/2015, that is the application which seeks to agitate principles arising out of the Grierson decision.  In light of the affidavit which is at page 108 of the application book, that is, the affidavit which has been provided which annexes the very document that was the foundation for the claim of fraud, any grant of special leave from this Court and then any successful appeal which resulted in the matter going back to the Court of Appeal would, in my respectful submission, be futile.  Can I say I do not hold formal instructions to abandon the application but that matter of fact means that it ought not, in my respectful submission, trouble your Honours.

KEANE J:   But you do not have those instructions.

MR HOLT:   I do not have those instructions.  I am sorry, your Honour.

KEANE J:   Very well.

MR HOLT:   But that is the position and I will not make any further submissions unless the Court pleases.  Turning then to the application in B14/2015, in my respectful submission this application for special leave raises a fundamental and important question about the principles that govern the exercise of the discretion to exclude illegally or improperly obtained evidence.

KEANE J:   Well, before you get to that, it is three years out of time and there is not really an explanation as to why that is so.

MR HOLT:   It is.  No, I will address that first.  I am sorry, your Honour.  The only explanation is that which is in the affidavit of the applicant which essentially, the only matters I can point to properly from that affidavit are that he was incarcerated, unsurprisingly at the time that he was convicted and following his appeal, he still is serving a life sentence, and that he did not receive, as he deposes, legal advice in relation to prospects of a special leave application in relation to the first appeal.

He, in fact, only came then to receive advice about that matter when he sought advice in relation to the matter which I have just invited your Honours not to take too much time with, so that is the first time in essence, that anybody, if I can put it that way, has looked properly at that first application.  It is well out of time.  Your Honours would ordinarily be minded not to grant leave to extend time when matters are that old but, in our submission, it raises an important point of principle and, if that is so, special leave ought to be granted regardless and I cannot advance submissions beyond that properly.

If I might then turn to the substance of the application, as I say, in our submission the application for special leave does raise questions of principle.  My learned friends in their written submissions say this is just an example of the application of the principles of Ireland and Bunning v Cross.

KEANE J:   Well, it concerns the exercise of judicial discretion.

MR HOLT:   It does and if my learned friends are right about that then we do not get special leave.  That is plain enough.  In my submission, though, what occurred in the Court of Appeal in this case was, in fact, a reworking of the boundaries of the discretion, that is, that the decision of the Court of Appeal has affected the structure of the discretion.  It does not simply represent an example of the discretion being exercised in accordance with existing principles.

KEANE J:   Does that submission depend upon reading the word “flagrant” as was used by the court as being something different from deliberate when describing the conduct of the police.

MR HOLT:   Can I put it in this way, your Honour?  The answer is both yes and no.  I put our submission on two bases and I hope this became apparent in the reply that was filed because the point that your Honour refers to is the one, of course, that our friends raised in their written submissions which is “flagrant” simply means deliberate.  Our first submission in response to that is just no, it does not.  They are two different concepts.  “Flagrancy” has a different flavour to it, a different notion than “deliberateness”, but even if they are the same thing ‑ ‑ ‑

KEANE J:   Well, brazenly deliberate.

MR HOLT:   Brazen, obvious - there is an element of contumeliousness about “flagrancy” and when one traces back how the word came to be used by the Court of Appeal it was a ‑ ‑ ‑

KEANE J:   But the more adjectives you add, the farther away you get from just simply being inadvertent.

MR HOLT:   Yes, but, in my submission, one of the really important structural matters around this discretion is that which was set out by this Court in Bunning v Cross and that is that that range from inadvertent through to what was described by the Court as being the real evil, or described at least by Justice Deane as being the real evil, encapsulates both recklessness - reckless and deliberate conduct on the part of law enforcement officials.

Those have been dealt with and, with respect, properly so as being essentially both representative of the true evil of that end of the spectrum and thus, if “flagrancy” is something different from “deliberateness”, then that devalues “recklessness” and does not place it at that extreme end of the spectrum and thus permits it to be treated or requires it to be treated in the way that it should in the proper exercise of this discretion or, if they are the same thing, then what this judgment does, in my respectful submission, is to drive a wedge between “deliberateness” and “recklessness” which is a departure from the structural walls put around this discretion by cases, particularly Bunning v Cross itself.

So, the essence of the argument, if I can put it this way, is twofold:  firstly, that “flagrancy” does not just mean deliberateness; and, secondly, that if it does just mean deliberateness, if it does not have that other flavour that your Honour adverted to - your Honour Justice Keane adverted to, and which we would say exists, even if that is the case, then it drove a wedge between “deliberateness” and “recklessness” in a way that cannot be justified in accordance with the statement of the discretion in Bunning v Cross, recognising this is not a discretion of course that is at large, it is a discretion that is bounded.

This Court has provided, with respect, very clear boundaries around it, particularly on the key variable, or one of the key variables, in our submission, which is the characterisation of the conduct of the law enforcement official at issue.  What Bunning v Cross says is essentially recklessness and deliberateness, deliberate breach of the law or reckless breach of the law by law enforcement authority takes you into the real evil and what this judgment does, in my respectful submission, is to devalue “recklessness” by essentially permitting reasoning that says this was not flagrant, therefore, by implication, it was just reckless or only reckless and, in my submission, it has altered the structure of the way in which the discretion gets exercised.

The evidence of that, in my respectful submission, the fact that that is not just semantics, is apparent on the face of this case which is why it is a good vehicle, in our submission, to deal with this issue.  The conduct of the relevant law enforcement officer in this case was, in my respectful submission, properly described by President McMurdo as being reckless and, of course, “reckless” as meaning actually apprehending the probability that what he was doing was illegal and proceeding regardless.

When one appreciates it in those terms, one appreciates why this Court in Bunning v Cross would not have drawn any meaningful distinction between “deliberateness” and “recklessness” in this context and in circumstances where he was aware of the applicant’s aboriginality, he was aware of the applicant’s intoxication - at least at some level, it turned out to be an extraordinary level of intoxication on the facts, but he was aware of both of those things and the law enforcement officer was aware of the obligations under the Police Powers and Responsibilities Act that flowed from those two matters of fact being established and this evidence was obtained in clear breach of those obligations.

On a proper application of the principles in Bunning v Cross, in our submission, if the goal posts had not essentially been moved by the importation of the distraction of “flagrancy” as a kind of superadded level of serious conduct on behalf of the police, this would not have been a finely balanced exercise of this discretion. 

The walls that have been placed around the discretion by this Court would have compelled exclusion, in our respectful submission, in those particular circumstances, particularly so when one examines what Justice McMurdo said at paragraphs [23] and [24] of her Honour’s judgments at application book 58 and 59.

GORDON J:   That she would have to come to a different conclusion?

MR HOLT:   No, I am not placing relevance on that, your Honour.  That is a two‑edged sword from our perspective in this application.  I do not say that at all.  No, this is about the quality of the evidence.  One of the reasons why her Honour expressed the view that she did, that your Honour Justice Gordon has just noted, was because her Honour described the material that had been produced by that at least reckless breach of two provisions that are intended to be protective of persons when being interrogated by police as damning and highly prejudicial but in turn of limited probative value because of the risk noted about halfway down paragraph [24] on page 59 that:

a jury may place undue weight on the evidence without giving sufficient consideration to its unreliability –

So, what had ‑ ‑ ‑

KEANE J:   Then what do you say about paragraph [25]?

MR HOLT:   Well that, in our submission, goes to the heart of the error in paragraph [25].

GORDON J:   You deal with three of your hurdles, i.e. three years out of time, no explanation and discretion.  What do you do with no substantial miscarriage of justice?

MR HOLT:   Well, in our respectful submission, the characterisation that her Honour Justice McMurdo gives to this evidence as being damning, using her Honour’s words, and highly prejudicial in terms of the risk that it would be misused, is such as to lead to the inevitable conclusion, in my submission, that had this evidence been excluded, as it properly should have been, by the Court of Appeal, had the appeal been allowed, there would have been a retrial.

It is hard to see how one could have applied vice in these circumstances given the characterisation of this evidence and the likely risk of it, in terms of the way in which the jury was likely to reason.  There is no suggestion in the judgment, and I do not suggest that is because it was not said, but there is no suggestion that there was a strong proviso argument put, given the nature of this evidence.

It was put, understandably, as an important part of the Crown case, given that it involved denials of killing in circumstances where the applicant pleaded guilty to manslaughter at the outset of the trial and the directions that were given at least permitted Edwards‑type reasoning in that regard if the jury was so minded.  So, the importance of the evidence in that sense, given the availability of a necessary manslaughter verdict, given the plea, in my submission, means that there must have been a substantial miscarriage of justice.

KEANE J:   Well, 56 stab wounds is a pretty indicative of an intention to at least do grievous bodily harm.

MR HOLT:   The other matter that needed to be dealt with in evidence, of course, was the applicant’s level of intoxication.  I do not suggest that the Crown had no case on murder.  They plainly did but, in my submission, the nature of this evidence, the important part that it played, particularly given the level of intoxication of the applicant, means that this is not a substantial miscarriage of justice case.  There was a genuine manslaughter verdict available.  Of course, her Honour Justice McMurdo found that might have been on the basis of provocation but the majority did not agree so that, for these purposes, is beside the point.  But that is my response to the substantial miscarriage of justice point. 

Can I take your Honours just briefly back to the question of flagrancy because it does, in my submission, go to the heart of the application for either of the two reasons that we have indicated and simply to note that the word “flagrancy”, the importation of “flagrancy”, seems to have come via the trial judge and in particular by reference to an earlier decision of the Court of Appeal in a case called Batchelor.  Your Honours may have seen reference to that.

In Batchelor importantly, in my submission, the word “flagrant” was properly used because remarkably, perhaps just extraordinarily honestly, the police officer in that case had not only conceded knowledge of illegality that what he was doing by proceeding to question was unlawful, but also that he had turned his mind to the fact that might mean that the evidence was inadmissible and thus there was a true flagrancy in that regard.

But what has happened here, in my submission, and if I could just finish on this basis - I am conscious of time - what has happened in this case is that when one adds a superadded level of seriousness, a higher level of seriousness, one permits a conclusion which says this is only reckless, or merely reckless and that is the essence of what occurred here, whereas what Bunning v Cross makes clear and, with respect, rightly, is that “recklessness” and “deliberateness” ought be seen as part of the same evil, to use the language of the judgment.  Unless there are any particular matters, those are my submissions.

KEANE J:   We need not trouble you, Mr Byrne.

There are two applications before the Court.  Matter B14/2015 seeks leave to challenge the decision of the Court of Appeal delivered on 29 November 2011.  This application is thus more than three years out of time.  No satisfactory explanation for the delay is offered by the applicant and, in any event, the prospects of successful appeal against the discretionary judgment by a trial judge which was affirmed on appeal are not such as to warrant a grant of special leave to appeal to this Court.  The applicant’s argument did not suggest an arguable case that his conviction was a miscarriage of justice. 

Matter B5/2015 seeks leave to challenge the decision the Court of Appeal delivered on 4 February this year which sought an extension of time to challenge the decision in the earlier appeal in order to pursue what would be, in effect, a second appeal against his conviction.  The decision of the Court of Appeal was plainly correct.  Special leave should be refused in each case.

AT 11.02 AM THE MATTER WAS CONCLUDED