Melling v The Queen

[2011] HCATrans 207

[2011] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B8 of 2011

B e t w e e n -

HENRY JOSEPH MELLING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 AUGUST 2011, AT 11.43 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:  If the Court pleases, I appear for the applicant with learned friend, MR J.M. McINNES.  (instructed by Legal Aid (Qld))

MR M.J. COPLEY, SC:   If the Court pleases I appear with MR G.P CASH appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HEYDON J:   Yes, Mr Callaghan.

MR CALLAGHAN:   Your Honours, the Criminal Code (Qld) provides that an appeal against conviction may be brought on any one of four grounds. It may be convenient to refer to page 96 of the application book where section 668E of the Criminal Code is reproduced.  We are concerned with subsection (1) which falls into two parts.  The first two grounds of appeal are expressed to apply to the verdict and they are that the verdict is unreasonable or cannot be supported having regard to the evidence.  The second two relate to the judgment of the court which may be set aside on the basis of a wrong decision of any question of law or, if on any ground whatsoever, there was a miscarriage of justice. 

The applicant complained to the Court of Appeal under the first part of that section, namely, that the verdict in his trial was unreasonable.  The Court of Appeal concluded and it cannot, we suggest, relevantly be disputed that, given the manner in which the trial was conducted, the evidence was not such as to permit a verdict of guilty.  That much is reflected in application book 72, paragraph [28] of the Court of Appeal’s judgment.  It must follow, in our submission, that if the verdict of guilty was unreasonable, then the reasonable verdict would have been one of not guilty. 

The jury had no basis upon which to convict and, if they had done as the case demanded, the applicant was entitled to an acquittal at his trial and the Crown could not have challenged that.  The applicant was entitled to that acquittal at his trial and he laid claim to it on his appeal.  An important part of the judgment appears in application book page 73 at paragraph [32] in the judgment from the Court of Appeal where the court accepts:

that where an appeal succeeds on the ground that the evidence at the trial was not sufficient to justify a conviction, no new trial should be ordered.

We draw particular attention to the words “at the trial”. That must mean, in our submission, at the trial as it was run, not at some putative future trial. Not a trial. It is at the trial. The second part of that paragraph warrants attention because it goes on to reach the conclusion that on the evidence a verdict of guilty could properly have been entered had the Crown run the trial a different way. We argue that an important point has been skipped over there, that is to say, engagement upon the applicant’s contention that the verdict was unreasonable. That was not dealt with. The applicant was entitled to have it dealt with, entitled to succeed on that point and entitled to the only reasonable verdict which could have been delivered on the evidence which should have been delivered pursuant to section 668E(2), which is back on application book 96.

BELL J:   That section is prefaced by the words “Subject to the special provisions of this chapter” which takes one then to section 669(1), does it not?

MR CALLAGHAN:   That is right, that is where we are at. 

BELL J:   This is your submission that an unreasonable verdict is not picked up under that provision under the rubric “miscarriage of justice”?

MR CALLAGHAN:   That is the first part of our submission, yes.

BELL J:   One difficulty with that is the provisions of the Code in this respect are in like terms to the provisions of the Criminal Appeal Act (NSW) considered by this Court in Gerakiteys v The Queen.  Chief Justice Gibbs considered it clear that there was a power to grant a retrial in circumstances in which one had a verdict that was unreasonable or not supported by the evidence.  He described it as broad discretionary power.

MR CALLAGHAN:   Yes.  Well, we, perhaps even more specifically, have to engage – and I am not seeking to avoid the observations of Chief Justice Gibbs, but the respondent draws your attention in particular to a passage in the decision of Giam. 

BELL J:   Yes, where the point was specifically considered by Chief Justice Spigelman.

MR CALLAGHAN:   More specifically, we would suggest, than in Gerakiteys. Chief Justice Spigelman says that – and this is at 104 A Crim R 416 at paragraph 45:

It is clear that the reference to “miscarriage of justice” in s 8 –

of the New South Wales Act, which is 669 in Queensland –

refers to each of the four separate matters referred to in s 6(1) –

of the New South Wales Act, which is 668E in Queensland. We make a few points about that. Firstly, with the very greatest of respect, the proposition that it is clear that the same phrase used in proximate sections of the same statute should bear different meanings is one which we submit ought to be supported by reasoning rather than assertion. The second point to be made is that the assertion does not address the proposition that section 668E(1), or the equivalent, falls into two parts. There are two grounds relating to the verdict and two grounds relating to the judgment of the court. The proposition that they should ‑ ‑ ‑

HEYDON J:   I am not sure about that.  The fourth point is that on any ground whatsoever there was a miscarriage of justice.  That is a compendious pointer to anything that could have gone wrong at the trial which led to a miscarriage.  I think to analyse it in the way you are is perhaps to erect too rigid a model.

MR CALLAGHAN:   Well, whether the model is rigid or not, the phrase “miscarriage of justice” is expressed to apply to the judgment of the court, whereas the earlier two grounds, if we are dealing with them as four, are expressed to apply to the verdict.

HEYDON J:   The first two grounds apply to the verdict.  The third applies to the judgment of the court of trial because of a wrong decision of a question of law.  Then it says “or that on any ground whatsoever”.  Can that not apply both to the conduct of the jury and the conduct of the judge and, indeed, to anything else that may have affected the justice of the trial?

MR CALLAGHAN:    It may bear that interpretation, your Honour.  Our point is that it is not clear, and not so clear as to be able to be – for the assertion made in the case of Giam to be made without some analysis.

HEYDON J:   Now, on one view, of course, there would be a miscarriage of justice if your clients were not tried again, but there is a problem I think that you advert to; in effect, the Crown, you say, will be altering its case at the second trial by propounding different charges, charges that perhaps it should have propounded at the first trial.

MR CALLAGHAN:   That is so, but we baulk at your Honour’s proposition that a miscarriage of justice, as the term is understood, would occur if we were not – or if the applicant was not subject to a further trial.

HEYDON J:   I am not using the expression in the meaning in 668E.  It just seems to be rather scandalous that behaviour of the type alleged against your clients, which it must in very large measure be regarded as correctly alleged, should escape any attention from the criminal justice system.

MR CALLAGHAN:   Well, two points.  Of course his conduct does not escape attention; he is serving a long period of imprisonment.

HEYDON J:   On other charges.

MR CALLAGHAN:   On other charges, that is so.  The other point is one which we say does engage questions as to the administration of justice in this application because this is not like cases such as Taufahema, a case involving a misdirection by a trial judge, or some technical blunder in a summing‑up.  This is a case which is before your Honours because of a decision made by the Executive and it is only, we submit, if the courts are to be concerned with sparing the Executive the embarrassment that would attend the decision for which we contend, that the concept of a miscarriage of justice, as your Honour is using it, becomes a relevant consideration.  That is what sets this case apart from others in which retrials have been ordered because of some error afflicting the course of the trial.

BELL J:   The Crown put its case on the basis that each man was a principal as distinct from the more obvious basis that in circumstances in which one could not say who inflicted the blow or blows that resulted in the skull fracture and associated brain damage, the Crown case was one or other inflicted that injury with the necessary intent and the other aided and abetted that other in the infliction of that injury knowing of the requisite intent.

MR CALLAGHAN:   The case could have been put on that basis, but was not.

BELL J:   Yes.  The jury must have been satisfied that each man possessed the necessary intent by reason of their verdict and the way they were directed, is that so?

MR CALLAGHAN:   Well, yes, but the point made and accepted by all is that the evidence did not allow for that conclusion to be drawn because the intent could have resided in either, but not necessarily in both.  The relevant injuries which would have comprised the grievous bodily harm caused with intent were, in effect, confined to the injuries to the head and they could have been the work of one, but not the other and in the absence of any ‑ ‑ ‑

BELL J:   I think the reasoning of the Court of Appeal was, whilst the evidence supported a conclusion that both were present when the injury was inflicted, the one inflicting it and the other aiding and abetting and that both possessed the necessary intent, it was open to consider as a possibility that the aider and abetter might not have possessed the requisite intent to render him liable for the offence, and that was the reason for the order for a new trial as distinct from the dismissing of the appeal.

MR CALLAGHAN:   Yes, and it was open even to consider that only one offender caused the grievous bodily harm.  It is not just limited to the question of intent.

BELL J:   Indeed, yes.

MR CALLAGHAN:   The offence.....might have been committed by one or the other and in the absence of any reliance upon the party’s provisions, it followed that the applicant ought to have been acquitted because of that reasonable possibility that it was the other and not him.

BELL J:   In dealing with the decision of this Court in Taufahema, the point you make is that the difficulties that attended this trial were of the making of the prosecution and not the trial judge, but it seems to me ‑ ‑ ‑

MR CALLAGHAN:   That receives particular attention in Taufahema at 255, paragraph 51.  The fact that the errors concerned there were errors by the trial judge rather than the prosecution were relevant to the disposition of the matter.

BELL J:   Yes.  Turning to the joint reasons in Taufahema at page 263, paragraph 68, it was said:

In the circumstances as they have unfolded, however, it is hard to see why it is unfair for the prosecution to be allowed to remould its case in the manner proposed.  What has happened may be regrettable and undesirable, but it is not sinister.

On a view here, it is inexplicable why the case was not presented on the basis that either each man was a principal or he was an aider and abetter, do you point to any forensic advantage to the prosecution in the way the matter was run?

MR CALLAGHAN:   I would respectfully adopt your Honour’s word “inexplicable”.

BELL J:   In those circumstances, it might be thought, although one can distinguish it from Taufahema, it is very much subject to that observation in the joint reasons in the last line of paragraph 68.

MR CALLAGHAN:   All of the observations in that case were made in the context of a case where the appeal was successful because of misdirections or because of the wrong decision of a question of law.  It was not the verdict

which was attacked there.  The issue here is that at his trial this applicant was entitled to a verdict of not guilty, however offensive that may be to certain notions and we accept what you say in that regard.

BELL J: That is a proposition that seems to me to not pay recognition to section 668E(2) which directs attention to the special provisions of the Act when you say “entitled to an acquittal”.

MR CALLAGHAN:   I am sorry, your Honour, I missed that.

BELL J:   When you keep speaking of your client’s entitlement to an acquittal.

MR CALLAGHAN:   At the trial, yes.  If the jury had conscientiously performed its duty, an acquittal ought to have been entered.  There cannot be any dispute about that.

BELL J:   But we are concerned with the order made by the Court of Appeal in the exercise of its jurisdiction having determined the appeal in his favour, and that directs attention to 668E(2) and then over to 669, does it not?

MR CALLAGHAN:   It does, and our simple submission is that it is not clear, to use the word asserted in Giam, why a court ought to have the power in any circumstances to order a retrial if it is found that a guilty verdict was unreasonable.  Now, the court did not engage on that question to the extent that we submit they ought to have.  They ought to have declared that the verdict was unreasonable and that the applicant should then have the reasonable verdict substituted in its place.  Even if we get to 669, there are serious questions as to the manner in which the discretion invested by that section ought to be exercised.  It does require that the discretion must be exercised “having regard to all the circumstances”.  This is where the question of the role of the Executive as compared with the role of the judiciary assumes relevance.

The case is here because of an omission by an experienced Crown prosecutor.  To give the prosecution a second chance conflicts, we submit, with the basic principle that at every criminal trial the prosecution must prove its case at that trial, not at a second or a third or however many chances they get.  I apprehend that your Honours understand our argument.

HEYDON J:   Yes, we do, I think.  Thank you, Mr Callaghan.  We need not trouble you, Mr Copley.

In our opinion, there are insufficient prospects of success in the appeal were special leave to be granted.  Therefore, special leave must be refused.

The Court will adjourn for a short time in order to reconstitute.

AT 12.03 PM THE MATTER WAS CONCLUDED