McGee v The Queen

[2009] HCATrans 81

[2009] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A38 of 2008

B e t w e e n -

EUGENE NORMAN McGEE

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A39 of 2008

B e t w e e n -

CRAIG PATRICK McGEE

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 1 MAY 2009, AT 1.20 PM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC:   If the Court pleases, I appear with MR C.S.L. ABBOTT for Mr Eugene McGee in both applications.  (instructed by Jon Lister)

MS B.J. POWELL, QC:   If the Court pleases, I appear with my learned friend, MS K.E. WAIBLINGER, for Mr Craig McGee. (instructed by Karen E. Waiblinger)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia:   I appear with my learned friend, MR C. JACOBI, appear for the respondent in both applications.  (instructed by Director of Public Prosecutions (SA))

HAYNE J:   Is there any reason why we should not hear these two matters together?

MR GAME:   No, your Honour.

HAYNE J:   Counsel have, I think, been informed that we would propose that a total of 30 minutes be allowed for both applicants.  I understand that you have made an arrangement with Ms Powell, which seems to have you with 25 minutes and her with five, Mr Game.  Is that right?

MR GAME:   We pinched an extra five minutes, your Honour.  Yes, your Honour, that is correct, but I should say this.  I will do the bulk of the argument.

HAYNE J:   Yes, Mr Game.

MR GAME:   May I begin with the first special leave point in the first ground.  I will explain why this is so shortly.  One would not appreciate from the Court of Criminal Appeal’s judgment or from the Crown’s submissions what we submit is the quite critical question that arises in this case.  One might leave till later, in effect, classifying it, whether or not it is a question of incontrovertibility, double jeopardy or abuse of process.  It is perhaps best to identify the question first.  The question is this, whether it is appropriate for the Crown to pursue after a disputed hearing on the merits a contention which is said to aggravate an offence – the commission of an offence – to such a degree that imprisonment is the only result, obtain an adverse outcome to that, not appeal it and then launch separate proceedings in which that contention is taken as the foundation of the case said to be brought in the second prosecution.

In my submission, this case squarely raises that question, although there is no hint of appreciation of it in the judgment of the Court of Criminal Appeal.  I will explain to your Honours why there is no hint of it shortly, but I will explain to your Honours why the question arises in this case in this way – a matter which was appreciated by the judge in the District Court but he held that Gilham in effect precluded him holding that incontrovertibility or abuse of process prohibited the giving of any effect to that which occurred in the previous proceedings.

If I might take your Honours to the application book at page 12 – this is after the applicant, Eugene McGee, had been acquitted of dangerous driving causing death but he had pleaded to two offences under the same provision – fail to stop and fail to render assistance.  The evidence of Dr McFarlane had been called at the trial, but there was a disputed facts hearing at the sentence, depending in effect on the evidence at the trial and competing submissions made about it.  On page 12 of the application book the Crown makes the submission – and the submission is this:

That the accused acted deliberately in leaving the scene . . . That he gave no evidence of concern for the welfare . . . That he avoided the police for a period of about four hours immediately after the accident and that his actions immediately after the accident frustrated police queries, particularly in relation to the issue of alcohol consumption and the need for a compulsory breath‑test to be conducted within two hours of the accident.

That is the matter that is elaborated under the heading “Firstly”.  At the bottom of the page:  if you accept, then imprisonment.  That is at the top of page 13.  Then the Crown again refers to the aggravating circumstances.  On page 14 the Crown at about line 12 refers to something that could be in a particular case quite a different matter, which is a finding on the balance of probabilities in mitigation.  But the Crown says – and there is evidence that the Crown had chosen not to lead evidence disputing what Dr McFarlane said.

The Crown would acknowledge that if your Honour is satisfied to that standard that the accused that the accused had a pre‑existing post‑traumatic stress disorder condition, which was activated by the collision . . . the Crown’s submission would not be that imprisonment was the only appropriate disposition.

If we come to the end of that exchange or submissions, at page 20:

The Crown invites you to say that on the balance of probabilities he was not labouring under that condition at the time that the accident happened and at the time of his actions immediately thereafter, and invites you to find that those actions at the time and immediately thereafter were deliberate acts.  If your Honour reaches that conclusion, then the Crown’s submission in relation to the appropriate disposition of the matter being by way of imprisonment then holds force.

So that when one comes to the reasons on sentence, particularly at pages 30 to 31 – and this is the point which is drawn out by Judge Robertson in the District Court – and in light of the submissions made by the counsel, it is not simply the finding on the balance of probabilities accepting the defence argument.  What is occurring there and as foreshadowed by the prosecutor in what she said at page 14 is that the Crown’s submission on an aggravating circumstance has been rejected.  In my submission, there is no escape from that.

The judge in the District Court appreciated this – and I will take your Honours to some passages – and he appreciated it in a very explicit way.  At page 265 of the application book, paragraph 144:

The determination by the Chief Judge that Eugene McGee failed to stop and failed to render assistance because of the effects of dissociation which he experienced . . . carried with it the rejection of the submission on behalf of the Crown that Eugene McGee failed to stop . . . for the purpose of frustrating Police enquiries regarding his alcohol consumption . . . 

Indeed, the central issue was whether the Chief Judge should accept the evidence of Professor McFarlane or not.  Once he accepted that evidence, that brought with it the rejection of the Crown’s submission on aggravation.

Similarly, and if I may take your Honours to it briefly, at paragraphs 156 and 157, the issue about aggravating circumstances, 159 and 160 in relation to the intention, and then I would take your Honours to paragraph 170:

I have already stated that the Crown case is that Eugene McGee left the collision scene and remained out of contact to avoid being required to undergo an alco-test or breath analysis and to avoid having the state of his sobriety investigated.  The Crown will ask the Jury to make this finding.  It is the foundation upon which the Crown builds its case –

So when I said the foundation of the case and a central finding that is made out, in my submission, on the evidence in this case and paragraph 187, critically and centrally:

In my opinion, that part of the sentencing submission which dealt with the issue for the reason for Eugene McGee not stopping, and remaining out of contact, was a Disputed Facts hearing . . . were made following a hearing on the merits by a tribunal of fact.

Now we come to the Court of Criminal Appeal’s judgment and the judgment of the Chief Justice, if I may take your Honours to pages 330 and 331.  Back at paragraph 50 his Honour appears to – and clearly does – think that the finding that he is concerned with is only the finding about the dissociative state.  One can see that two-thirds of the way down in paragraph 50.  But then we see at pages 330 and 331 first of all reference to Gilham and then ‑ ‑ ‑

HAYNE J:   Just before you part from paragraph 50, it is a finding also about the different time focus of the two inquiries.

MR GAME:   Yes, but, your Honour, that does not go anywhere either because the sentencing judge found that the dissociative state – and again that is another mistake actually, page 32 – went on between the time you started your journey with your brother, that is about two hours after.  Can I just take your Honour to something else to show you that is two hours after the events at 5.  So if you look at page 389 – the time thing does not work, your Honour.  If you go to page 389, the whole of those 17 items are within that timeframe.

HAYNE J:   The proposition then is, is it, that because those matters are canvassed in a sentencing hearing and the judge expresses opinions about it that precludes later litigation of an offence directed to what may be a different point of time.  Is that right?

MR GAME:   No, your Honour.  Nobody is saying that this case is made out about what happened between 7 and 11.30.  They are saying this case is a case that had its inception and that the whole heart of it was involved in things that occurred in conduct and telephone calls between 5 and 7.  The time feature has never been something that has been capable of being – you cannot run a Crown case without going to – the judge in the District Court appreciated this in a fundamental way.

CRENNAN J:   Are you distinguishing for incontrovertibility purposes between arguments run and lost and findings made?

MR GAME:   I am saying that if you ask for an aggravating finding to be made, and the finding can be taken to have been rejected, and that is exactly the same as the finding made in respect of Professor McFarlane’s evidence amounted to, and could not be regarded as otherwise than a rejection of the submission made, that it was an aggravating circumstance which was that the whole purpose of what he did was to avoid the police for a period of hours to avoid the conduct of a breath analysis test, which is a period of two hours which takes one after the time when he has left with his brother.  The two hours is in fact within that timeframe.

Your Honour, in my submission, as a matter of substance - and there can be no escape from the conclusion that what happened in this case was not merely the Crown opposing the making of a finding on the balance of probabilities, but the Crown seeking an aggravating finding which would result in immediate imprisonment, a finding which was rejected, that is to say that issue has been controverted in exactly the same way as if the judge had made the finding.  That is to say it accepted the Crown’s submission.

When you go the judgment at page 330 to 331, I might say also where the Chief Justice called this finding about the dissociative state peripheral.  We called that at page 353, but that is not the point at all.  I might take your Honours first of all, Gilham is referred to.  Gilham is the only authority, as it were, that shall one say, accepts or that somehow or another incontrovertibility or double jeopardy does not apply to findings made on sentence.

Now, at paragraph 74 his Honour points out that he accepts that this issue is not resolved by the High Court, then he says:

In the present case the only circumstance relied upon is that the finding is to be controverted, and that it is a finding that was opposed by the prosecution -

But he has misunderstood the issue; that is not the issue that was the heart of it.  In the next paragraph, paragraph 75, it is said in respect of appeals, the sentence proceedings are less formal.  If you are going to make a finding beyond reasonable doubt, then formality has nothing to do with it, but then:

There can be no appeal, as such, against a finding of fact in the course of sentencing -

That is a clear misapprehension about how sentencing appeals work – Crown or accused – and your Honour’s own decision in the case of AB is a case in point where you made that very distinction.

HAYNE J:   I would have thought in terms that appeals are against orders not reasons.

MR GAME:   Yes, your Honour.  Again, it is a complete misunderstanding of both what happens in appeals and what the issue was that was being litigated in this case.  The only authority on the point that suggests that somehow or another these issues are any different than issues on verdict – and in my submission, it is no different than if there were an aggravated element of the offence, in fact there now is in South Australia since this case ‑ ‑ ‑

HAYNE J:   But if the aggravated element was not charged, the person cannot be sentenced for it.  That is if it is an element of offence ‑ ‑ ‑

MR GAME:   Yes, your Honour, I understood, but this was not an element of the offence, but ‑ ‑ ‑

HAYNE J:   No, just so, but it was a circumstance said to aggravate the quality of the offending.  Not found, I understand that.

MR GAME:   But he did stand at jeopardy for that finding, he stood at jeopardy in respect of that allegation, so in our submission, first of all Gilham is distinguishable because it was an agreed circumstance, there was no disputed finding on the issue, and again it is not correct to say - one sees in paragraph 205 – that, as it were, the judge’s findings are confined by agreement.  We see that at the bottom of the page.  In any case, this was a disputed finding, and in the next paragraph there was a suggestion that somehow or other findings on sentence are less significant.  But they are not when it comes to the question of the exposure, and may I give your Honours one example?

In cases like Kingswell, a matter that is not an element of the offence was held by this Court to be appropriate to be charged as an element of the offence, even though it was not element of the offence, in order to determine whether or not the person was liable to the higher penalty.  So the distinction between the two is often a distinction of form, not substance.  Kingswell and Meaton are very good examples of that ‑ ‑ ‑

HAYNE J:   But those are the thresholds for trafficable and commercial quantities, et cetera?

MR GAME:   Yes, your Honour.  But you had to charge that so that you would know what the jury thought about that particular issue.

HAYNE J:   Yes.

MR GAME:   So what I am saying is, in my submission, there is a really important question raised by this application and it is raised squarely in relation to how do you deal with a contested issue on sentence which exposed the person to jeopardy of imprisonment.  In this case, as it were, the second time, whether the Crown can come back and bring as the central part of their case, in fact it is particularised in this way, that allegation that it was the furtherance of that purpose that brought the agreement into existence, and the furtherance of that purpose was the conversations with the brother which were the things relied upon.  So we are not talking just about evidence, we are talking about an abstraction which is an aggravating factor.  So that is the first special leave question.

The second question concerns the issue of publicity.  In respect of the issue of publicity, may I take your Honours to the Chief Justice’s judgment at page 343?  Now, in the Chief Justice’s judgment at ‑ ‑ ‑

HAYNE J:   Can I just understand, Mr Game, do you say that there is a wrong application of principle or simply that the facts should have required a different outcome?

MR GAME:   On the publicity?

HAYNE J:   Yes.

MR GAME:   I say both, but can I say this?  There are two errors of law and they are related to each other.  One is an erroneous dealing with the expert evidence, an erroneous rejection of it.  The second is erroneous approach to the test in Glennon, not merely an erroneous application of it, but an erroneous conception of what is in fact involved.

Now, at page 343, and I will have to be quick, the two reports were tendered.  The judge in the District Court – it was never said, you know, that this bit or that bit may or may not be admissible, although I said that the last paragraph of Dr Hippel’s report was not something that we necessarily relied upon, and if his Honour did not wish to have regard to it then it did not affect the substance of what we wished to put.

But one sees there, his Honour rejects the evidence on the basis that that is a matter “for the Court alone to determine”, that somehow or another this is in some special category where a court cannot be assisted by expert evidence.  That is at line 31 on page 343.  The Chief Justice says at paragraph 127:

I agree with the Judge . . . I agree substantially with the reasons –

What follows then is a treatment of the evidence in which he has only had regard to the evidence insofar as it agrees with his own particular views about the matter.  In my submission, there could be no such principle that the evidence was, as it were, inadmissible because of the kind of test that was posited by the District Court judge, but we lost all of the evidence because of that, and we were never given the opportunity to, as it were, fillet it except for that I put that paragraph 30 was not necessary.  Now, one sees at paragraph 130 at the second line:

There is no reason to think that all such persons will be unable to recognise or to resist the effect of any such predisposition.

That is the issue about which Professor von Hippel was to have given evidence.  But the “all such persons” creeps into the dealing with Glennon.  Then one sees on the following page, paragraph 135, and it is really very difficult in the short time available, but:

I consider that this report also is a mix of admissible opinion and inadmissible opinion in the conclusion.

Now, what his Honour is referring to is paragraphs 29 and 30 of von Hippel.  But the rest of the report took our case a very long way in terms of the issue by itself, and it is really only the last two sentences which could be any problem.  But then one comes to this:

In my opinion there is no reason to think that, at least as to a number of persons, they cannot be satisfied that any bias that might exist is, in the circumstances, unfair or inappropriate.

Now, his Honour is setting himself up as an expert upon the very issue that Professor von Hippel had expertise and gave an account in his report.  W  hat that means is that his Honour thinks that these people who come with hidden biases can somehow recognise their hidden biases.  Then when one comes to the passage at 351 and 352, and I running short on time, but 351 – a series of propositions about matters with which his Honour agrees and disagrees but the effect of it is that some only of the people will hold – he concludes - opinions which are very hard, if not impossible, to remove, but then in 157 he says, in effect, that is too bad because:

I remind myself that the presence of an unrecognised bias that is difficult to dislodge is an aspect of our jury system.

In my submission, it is not.  It never has been.  What is an aspect is that jurors can deal with adverse publicity.  It has to be understood that the publicity in this case was of a kind beyond ordinary comprehension.  This man’s face was on the front page of the paper 27 times and so forth.  There was a royal commission into the outcome of his acquittal.  Then his Honour says:

there are corrective measures that can be taken –

and we see a series of corrective measures, all of which involve assumptions about factual issues which were the very issues to which Professor von Hippel gave evidence, but flowing through all of that is the notion of numbers in the application of Glennon.  That is to say, we had to show that the majority, or a substantial number, would hold a bias that could not be moved.

So that when it comes to Glennon, Glennon becomes, in effect, there will be unrecognised bias which you can do nothing about.  We have to establish that many or most or all – that is to say numbers will be biased and we have to do so without resort to expert evidence.  Once you get to that point – and the court itself is an expert – once you get to that point then Glennon could not possibly have any work to do.

The third point can be made briefly by referring to the particulars and the particulars are set out in the application book at 221.  This is, shall I say, the seventh set of particulars and those particulars show a very uncanny resemblance to the matters sought to be agitated by the prosecutor but the point about this is, in our submission, an important one about Rogers v The Queen because in Rogerson the Court recognised that the course of justice did not include police investigations.

In this case, in effect, what has happened is that the focus is on a very early part of the investigation.  The idea of adducing evidence, but

without any suggestion of a reference to a course of justice, is said to support the existence of the offence and then we see that the conduct is conduct from making contact.  That is the last line.  It does not rise as high as misleading, so it is just making contact.  In our submission, the prosecution so particularised would be bound to fail.  This case, in our submission, does raise an important question about the correct application of Rogerson in the distinction between investigations and the course of justice itself.  Those are our submissions.

CRENNAN J:   What about 3)(iii) of the particulars at application book 223, where intentional misleading is particularised?

MR GAME:   Yes, but, your Honour, that is a particular of things done.  It is not an essential particular of the charge and that point was recognised by Justice White which is that the cases particularised fall short of alleging any misleading conduct as an aspect of the conspiracy. 

HAYNE J:   Yes, thank you, Mr Game.  Yes, Ms Powell.

MS POWELL:   Your Honours, I adopt the submissions of Mr Game on behalf of the applicant, Craig McGee.  My submission is this.  Every offence, of course, for which is a person is indicted must be laid against some law.  The conduct alleged must come within charge laid and, although it sounds trite, we submit it is very important, the law must be a subsisting offence.

Now, the issue in this application is whether there is any offence known to the law of conspiring to attempt to pervert the course of justice.  We know that in conspiracy cases, and indeed in all cases, courts are no longer able to create criminal offences.  So much of course was said by Justice McHugh in Rogerson’s Case at page 304 when he cited Lord Diplock in R v Knuller in respect of the – the Court created further categories of conspiracy.

While it is acknowledged that the act said to be the object of this conspiracy has long been recognised as criminal conduct, that does not mean that a new type of conspiracy can be introduced by the courts.  If the conspiracy ever existed at common law, which is disputed, we say that it had to have been abolished by the 1992 amendments to the Criminal Law Consolidation Act and cannot now be resurrected by the courts.

Your Honours will have seen the arguments advanced that at common law there was only the offence of conspiracy to pervert the course of justice and not to attempt to pervert.  We say that no case has been found by either side, that is defence or prosecution, and nor is there any case referred to in the authorities as to the existence of such an offence.  Accordingly, one can readily see why that would be so, because the object of the unlawful agreement would be the same in both of the offences, that is conspiracy to pervert and conspiracy to attempt to pervert if it existed.  We say that there was ‑ ‑ ‑

HAYNE J:   Do you accept what Justice McHugh says in Rogerson 174 CLR particularly at 297 where he says that:

the “use of the word ‘attempt’ –

in the collocation “attempt to pervert” 

is misleading”.  The essence of the offence is “the doing of some act –

et cetera. 

MS POWELL:   Indeed, it is not to be read as an attempt in the ordinary sense of criminal law.

HAYNE J:   So therefore why is this information not to be understood as charging a conspiracy to commit an unlawful act, the unlawful act being the contravention of section 256(1)?

MS POWELL:   Because our section 270 of the Criminal Law Consolidation Act considers the criminal law conspiracies and your Honours will see that the only conspiracy considered in section 270 in respect of perversion of the course of justice is one to pervert the course of justice, not to attempt to pervert the course of justice. We say that if our Parliament when they enacted this new Part 7 had intended to create a new criminal offence it would have done so specifically in the context of 270 and we are supported by that in respect of other legislation, and particularly if we go to the Crimes Act (NSW), by their section 341 certain common law offences were abolished and in substitution therefore there was a creation of a statutory offence in the same way as there was in Australia.

The offences they abolished were the offence of perverting, the offence of attempting to pervert and the offence of conspiracy to pervert. We say you might charge conspiracies with respect to other Part 7 offences but you cannot charge a conspiracy with respect to a 256 offence because it creates a new and unknown of before in the common law type of conspiracy, particularly as 256 extends the course of justice to include the due administration of the law. In other words, that would be to extend what has previously been understood as a common law conspiracy. That would be an extension of the categories of conspiracy. That is for Parliament and not for the Courts. If the Court pleases.

HAYNE J:   Yes, thank you, Ms Powell.  The Court will adjourn to consider the course it will take in this matter.

AT 1.53 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.55 PM:

HAYNE J:   The Court will not trouble you, Mr Solicitor.

The Director of Public Prosecutions for South Australia has filed an information in the District Court of that State which, as amended, charges the applicants with conspiracy to attempt to pervert the course of justice. That offence is alleged to be contrary to the common law and section 256(1) of the Criminal Law Consolidation Act 1935 (SA).

The particulars given of the offence, as amended, assert that the applicants conspired to attempt to pervert the course of justice insofar as they agreed to frustrate, deflect or prevent members of the South Australian police force from investigating or adducing evidence of the blood‑alcohol reading and sobriety of Mr E.N. McGee when a motor vehicle he was driving struck and killed a cyclist.

The applicants applied to the District Court to quash the information as charging an offence not known the law of South Australia and to stay further proceedings on the information as an abuse of process.  Those applications failed at first instance and in proceedings before the Court of Criminal Appeal of the Supreme Court of South Australia by appeal, and on a question of law reserved for consideration of that court.  The applicants now seek special leave to appeal to this Court.

On the question of quashing the indictment it is enough to say that there is not shown to be sufficient reason to doubt the correctness of the conclusion reached by the Court of Criminal Appeal to warrant a grant of special leave.

The applicants urged that the application to stay proceedings as an abuse of process should have been granted because (a) prosecution of the information would controvert an essential finding of fact made by the judge who sentenced Mr E.N. McGee for an offence of driving without due care, or was otherwise vexatious, oppressive and unfair; (b) the applicants could not be tried fairly because of adverse pre‑trial publicity and certain evidence excluded by the trial judge tending to establish this should have been admitted; (c) the prosecution is bound to fail for one or more reasons because, having regard to its terms, section 256(1) was not engaged, or because the particulars alleged by the Director of Public Prosecutions, or the evidence to be relied upon, could not establish the offence; and (d) taken as a whole, the matters raised, together with related circumstances, revealed an abuse of process.

Before this Court the applicants seek to raise substantially the same matters.  Having regard to the conclusions of the Court of Criminal Appeal it is not demonstrated that any issue of incontrovertibility would arise in connection with the conspiracy charge.  Accordingly, there would be no occasion now for this Court to consider whether a finding of fact made in the course of sentencing engages any principle of incontrovertibility, and we are not persuaded that it is shown that prosecution of the charge of conspiracy is otherwise an abuse of process.

It is necessary to note one other matter raised in the application of Mr C.P. McGee. He submitted that the Court of Criminal Appeal erred in finding that the common law offence of conspiracy to attempt to pervert a course of justice survived the introduction of Part 7 of the Criminal Law Consolidation Act, and that if it had not erred in that way the information was bad for duplicity.

No finding of the kind alleged was made by the Court of Criminal Appeal, and the references in the information to common law and to section 256(1) of the Criminal Law Consolidation Act lead to no duplicity. The reference to common law is apt to the allegation of conspiracy. The wrongdoing which it is alleged was the subject of that conspiracy is identified by the reference to section 256(1).

This Court has often remarked on the undesirability of fragmenting the criminal process.  It is not in the interests of justice generally or in this particular case that there be a grant of special leave in these matters.  In each application special leave is refused.

The Court will adjourn to 2.15.

AT 1.59 PM THE MATTERS WERE CONCLUDED