Matta v The Queen

[1995] HCATrans 250

Office of the Registry
  Perth  No P15 of 1995

B e t w e e n -

TONY MATTA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 12.21 PM

Copyright in the High Court of Australia

MR H. SKLARZ   May it please the Court, I appear for the applicant.   (instructed by Henry Sklarz, barrister and solicitor)

MR B.R. MARTIN, QC:    May it please the Court, I appear with my learned friend, MR J.A. SCHOLZ for the respondent.   (instructed by M. Rozenes, QC, Director of Public Prosecutions (Commonwealth))

BRENNAN CJ:   Yes, Mr Sklarz.

MR SKLARZ:    The applicant was charged with three offences in the State of Western Australia in respect of offences under the Customs Act and also one under the Misuse of Drugs Act.  Between 7 and 16 September 1992 the applicant was tried before a judge and jury in the District Court of Western Australia in respect of these matters and on 16 September of that year, after the jury had been in retirement considering its verdict for a period of not less and in excess of six‑and‑a‑half hours, the trial judge misdirected to the jury that he would accept a majority verdict in respect of the charges, including the two Commonwealth charges.  His Honour did not correct the misdirection and the applicant was convicted unanimously of all three charges.

Subsequently and upon the precedent case of Cheatle the applicant appealed against the decision to the Court of Criminal Appeal by notice dated 17 February 1995 on the grounds that the trial judge erred in law by directing the jury that he would accept a majority verdict contrary to section 80 of the Commonwealth Constitution and thereby causing a miscarriage of justice. Secondly, the trial judge’s misdirection as to a majority verdict in all the circumstances caused the jury to misunderstand the direction. And lastly, by reason of the trial judge’s misdirection, the true nature of the verdict is unknown.

During argument it was also submitted to the Court of Criminal Appeal that because the trial judge did not correct the majority verdict ‑ ‑ ‑

DAWSON J:   I do not understand the true nature of the verdict, but I know it was unanimous.

MR SKLARZ:   It was unanimous but the argument is that the subsequent verdict of unanimous did not, and cannot, correct the misdirection.  What is submitted is that the wheels of justice went off the rails at the time of the misdirection and because his Honour did not correct that misdirection ‑ ‑ ‑

DAWSON J:   That is a submission that something happened in the jury room which meant that the jurors did not act according to their oath.

MR SKLARZ:   No, we are not endeavouring to surmise what may have probably happened in the jury room, though these are matters on which one can have some conjecture.  What we say is that, because of the misdirection, it was fatal to the proper administration of justice no matter what verdict was returned.

DAWSON J:   Why?  The judge did not tell the jurors to go against their oath.

MR SKLARZ:   No.  The judge’s function in such a trial is obviously as a judge of the law to direct the jury properly within the principles of the criminal law.  In this situation, his Honour did not so ‑ ‑ ‑

DAWSON J:   He did, but the direction he gave, when one looks at the result, had no effect.

MR SKLARZ:   That cannot be said because the misdirection stands at the end of the day, with respect.  The unanimity ‑ ‑ ‑

DAWSON J:   The misdirection was that they could bring in a majority verdict; they did not.

MR SKLARZ:   Yes.

DAWSON J:   Which meant, if the jurors were acting according to their oath, they all found that the accused were guilty beyond reasonable doubt.

MR SKLARZ:   There is no suggestion that the jurors would not have deliberated other than upon their oath.  The problem is, the submission by the applicant, is that the misdirection caused the jurors to deliberate in a certain direction which was not proper or legal at the time.

TOOHEY J:   You call it a misdirection, but is it, in truth, a misdirection?

MR SKLARZ:   Yes, it is a misdirection, your Honour, to the extent that the trial judge stated that he would accept a majority verdict and this is in the circumstances of no less than six‑and‑a‑half hours deliberation and in the circumstances of the backdrop of that, the jury go off in a very short period of time of no less 16 minutes, returning unanimity.

TOOHEY J:   But, what did the judge direct them?  Ordinarily, a misdirection arises from a direction by the trial judge to the jury as to how they are to regard certain evidence or some question of law which the trial judge enunciates which proves to be incorrect.  Here, he said that he would accept a majority verdict.  He did not get a majority verdict.

MR SKLARZ:   No.  But in the circumstances the misdirection ‑ we call it a misdirection, not a proper direction and cannot in the light of Cheatle be considered a proper direction ‑ we say that because there was no unanimity at the time that the jury returned after six‑and‑a‑half hours deliberation, that, upon giving a majority direction, the wheels of justice went off the rails.

DAWSON J:   What you are saying is that because that direction was given, those jurors who may have been standing out, gave up and said, “Well, if there’s to be a majority verdict, we might as well say the man’s guilty and bring in a unanimous verdict”.  That is what you are saying, and if they did that, then they were not acting in accordance with their oath.

MR SKLARZ:   We are saying there could be a possibility or a probability, in fact, and the lack of unanimity at that  ‑ ‑ ‑

DAWSON J:   This Court cannot act upon the assumption that the jurors did not adhere to their oath.

MR SKLARZ:   Yes.  The applicant is asking this Court to adjudicate in respect to the alleged misdirection on the basis that it was fatal to the proper administration of justice.  What happened to the verdict, we ‑ ‑ ‑

TOOHEY J:   But that is not really what you are putting, is it?  What you really seem to be putting, or perhaps have to put, is that what the trial judge said to the jury brought about the miscarriage of justice, rather than using the language of “direction” or “misdirection”.

MR SKLARZ:   Yes.

TOOHEY J:   But then, how do you show that?

MR SKLARZ:   We say that it is not onus upon the applicant to show where the miscarriage of justice occurred because of the closed doors of the jury room and the precedents that stand prevail.  But, because of the direction made by his Honour, in view of Cheatle, we say that from that point onwards, whatever be the verdict, be it majority or unanimous as it was, is fatal or has not been administered in the proper interests of justice.  Because there may be conjecture and these matters must be raised in view of the circumstances of the case that there might be jurors that are holding out, who throw their hands in the air and go with the majority.  But, these are not the substantial submissions that are made; these may be hyperbole or probabilities of conjecture.

What we say, though, is that the direction ‑ the majority direction ‑ was fatal in the administration of justice and to that extent, whatever the verdict was returned ‑ ‑ ‑

GAUDRON J:   But you cannot say that, can you?  You must show, at the very least, that there was a miscarriage of justice, must you not?

MR SKLARZ:   The difficulty, of course, is that one does not pry into, nor is one allowed to venture past the jury room door.  What the applicant says is that the direction, as it was given, was totally fatal to the proper administration of justice and, therefore, the miscarriage of justice came about by the circumstances of the case, namely that the foreman declared unanimity of the verdict.  But, really, the applicant says, the true verdict is unknown in respect to not only the alleged misdirection as we put it, but also in the circumstances of this case where pragmatically, the jury did not give proper adjudication ‑ further proper adjudication ‑ within the 16 minutes of having the misdirection.

DAWSON J:   But the judge also inquired, did he not, whether the verdict was unanimous and the reply was that it was?

MR SKLARZ:   Yes, but that can be seen not as a verification of unanimity, but it can also be argued that it was the bewilderment of the trial judge that, in the short time, virtually immediately upon giving a majority direction, that they returned what seemed to be a unanimous verdict.  And we say that it was more bewilderment, not verification in those comments and as I say, couched in the circumstances of the jury taking as long as it did to consider the verdict and also in the 16 ‑ ‑ ‑

DAWSON J:   But that really is not a point in this case because the judge brought the jury back of his own motion, did he not?  There was no indication at which stage the jury - when they were called back.

MR SKLARZ:   Yes, that is quite correct.  I can take the matter no further, if it please the Court.

BRENNAN CJ:   Thank you, Mr Sklarz.  We do not need to hear from you, Mr Martin.

The verdict in this case was returned by a unanimous jury.  The present application is based on what is said to have been a misdirection to the effect that the jury was entitled to bring in a majority verdict.  As the suggested misdirection did not lead to other than a unanimous verdict, there is no ground for assuming that a miscarriage of justice occurred.  Accordingly, special leave is refused.

AT 12.31 PM THE MATTER WAS CONCLUDED