Mihailovic v The Queen; Morgan v The Queen

[1994] HCATrans 191

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S227 of 1992

B e t w e e n -

ALEX MIHAILOVIC

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No Sl39 of 1993

B e t w e e n -

RONALD ALFRED MORGAN

Applicant

and

THE QUEEN

Respondent

Mihailovic(2) 1 3/2/94

Applications for special leave

to appeal

MASON CJ
BRENNAN J

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 FEBRUARY 1994, AT 2.39 PM

Copyright in the High Court of Australia

MR L.R.H. LORD, QC:  In the matter of Mihailovic, I appear

with my learned friend, MR I.H. McCLINTOCK, for the

applicant. (instructed by Simpson & Harrison)

MR G.R. JAMES, QC:  In the matter of Morgan, may it please

the Court, I appear with my learned friends,

MR I.H. McCLINTOCK and MR S.J. ODGERS, for the

applicant. (instructed by C.R.M. Neave, Managing

Director, Legal Aid Commission (New South Wales))

MR K. MASON, OC, Solicitor-General for New South Wales: In

each matter I appear for the Crown with my learned

friend, MR R.D. COGSWELL. (instructed by

S.E. O'Connor, Solicitor for Public Prosecutions

(New South Wales))

MASON CJ: Yes, Mr Solicitor, Mr James, you are proceeding

first, are you?

MR JAMES:  If it would be convenient to the Court, yes.

MASON CJ: Yes.

MR JAMES:  And indeed, Your Honours, might I hand up - it is

headed a summary of argument; it is in fact an

outline. It is somewhat more extensive than it

would otherwise be for one applicant, because

thanks to conversations with my learned friend,

Mr Lord, it is designed to cover both the cases of

Morgan and Mihailovic in substance, though my

learned friend would wish to add to it some remarks

as to the factual bases distinguishing Mihailovic,

but otherwise the argument that I would seek to put

and this document should cover the substance of

both of the applicants.

MASON CJ:	Why have we got four volumes of appeal books?
MR JAMES:	Your Honour, on the last occasion when the matter

was before the court in Sydney on 8 October, it was

the appeal at the same time. Unfortunately a real	indicated to us we should be prepared to deal with
issue in the matter was the evidence of French and Jong and the attitude taken to that by the trial
judge in the Court of Criminal Appeal. That evidence was given firstly on a voir dire, then on
the first trial and, to an extent, on the second
trial, and the material in the appeal books
actually cuts out a considerable degree of the material that would otherwise have been available
and restricts it to that evidence, the summing up
and the material directly referable to the
application for - the pre-trial applications, and
the argument, since what was also raised was the question of whether these matters had been raised
at first instance.

Mihailovic(2) 2 3/2/94

Further, there was some additional material

that was referred to on the last occasion and it

was indicated to us that the parties should give

attention to the sufficiency of the material and

the court would need to be - - -

MASON CJ:  How much of these four volumes contains that sort

of material?

MR JAMES: Quite a lot of it, Your Honour, regrettably. If

there is contest over the effect of the evidence of

Jong and French as to there being equal culpability

amongst all the four, yes, Your Honour.	I gather
there is some degree of that contest.

MASON CJ:	We will wait and see.
MR JAMES:	I hand up a total of seven copies, if Your Honour

pleases. It may be of assistance to the Court in

that regard if I hand up also, with the consent of
my learned friend, a chronology. Both sides had

prepared a chronology but the Crown's chronology is

a little more extensive. That may assist the Court

with that summary. I hand up eight copies thereof.

MASON CJ: Yes, thank you.

MR JAMES:  In the special leave papers and, on the last

occasion, additional questions to those to which

that argument has been addressed were raised, going

to the interpretations of the Director of Public
Prosecutions Act, and the power of the Director of

Public Prosecutions to terminate a prosecution or

to direct no further proceedings, those questions

are now not to be agitated, at least by these

applicants. We would concede that the true

interpretation of the Act is such that the Director

does have power to direct no further proceedings

after committal.

DAWSON J: That is the equivalent of entering a nolle, is

it?

MR JAMES: Well, I am not sure, Your Honour, that it is.

BRENNAN J:	It is a ..... bill, is it not?
MR JAMES:	The nolle prosequi was a formal pleading which went on to the record and, indeed, the indictment
in Queensland, working on the Code which has
procedural provisions, would be handed back to the prosecutor but only for the purposes of entering up the nolle prosequi on the indictment for return to
the court constitute part of the record. It is
accepted that, at least in the applicants'
arguments, that what occurred here was not a nolle
prosequi in the sense of putting paid to the

Mihailovic(2) 3 3/2/94

prosecution on these facts and on this occasion,

and, indeed - - -

BRENNAN J: When you say it is a formal plea, there is no

particular manner which is required. As long as it

is announced to the court in some form or another.

MR JAMES:  Indeed, Your Honour, in some jurisdictions,

simply announced orally, but what it does do is put
an end to those proceedings. What happened here,

however, was that there was an indictment for

manslaughter; there was an indictment for murder

which included an alternative of manslaughter

substituted for it.

BRENNAN J:	On what indictment was the conviction based?
MR JAMES:	The second, Your Honour, the conviction for

murder.

BRENNAN J:	Was that indictment invalid?
MR JAMES:	No, Your Honour, we do not contend that that

indictment was invalid.

BRENNAN J: Then, what is the point?

MR JAMES:  I am sorry, Your Honour.

BRENNAN J: What is the point? MASON CJ: What is your point?

BRENNAN J: What is your point?

MR JAMES:	My point is that the Crown should - - -
BRENNAN J:	You have got a valid indictment and you have got

a valid conviction on the indictment on this

hypothesis, what is the problem?

MR JAMES:  The problem, Your Honour, was that the Crown

should not have been permitted to substitute that

indictment for the indictment upon which there had

been a joinder, and that in the circumstances the

filing of that indictment attracted the court's

jurisdiction in discretion to deal with what, we

submit, was an abuse of process or an unfairness

against which the accused was entitled to be

guarded, indiscretion. Indeed, the trial judge at

97 in the application book deals with what had

happened before him.

TOOHEY J:  Do I take it then, Mr James, your complaint is

not of the substitution of an indictment carrying

murder and manslaughter as an alternative, but the

Mihailovic(2) 3/2/94

substitution of an indictment which contained a

charge of murder?. Is that the complaint?

MR JAMES:  Yes, Your Honour, coupled with the decision to

reject any plea to manslaughter - - -

TOOHEY J: Yes, I take that, in all the circumstances of the

case, but that is what you are complaining about?

MR JAMES:	That is so, Your Honour.
GAUDRON J:	Do I take it that there were, in fact, two

indictments at all relevant times?

MR JAMES:  No, Your Honour, not at all relevant times. the chronology indicates the position in New South As

Wales now is that a bill is found and a bill was

found for manslaughter. The matter proceeded on

the basis that a bill had been found for

manslaughter and, indeed, an indictment was

presented for manslaughter and to that the accused,

Morgan, pleaded not guilty. Subsequent to that a

bill was found for murder. Notwithstanding that it

was found for murder, it was apparently the

intention of the parties that a plea could be

accepted to manslaughter discharging both

indictments.

GAUDRON J: Well, there were two indictments.

MR JAMES:  Not yet filed, Your Honour.

GAUDRON J: Not yet filed.

MR JAMES: Subsequently, the indictment charging murder was

in court substituted for the manslaughter

indictment which was returned to the Crown.

GAUDRON J: Physically?

MR JAMES:	And there was at that time two indictments.
DAWSON J: When you say "subsequently", the first indictment

was returned to the Crown, was it?

MR JAMES: Yes, Your Honour.

GAUDRON J:  Even though there had been convictions for other

three on the basis of their pleas, on that earlier

indictment?

MR JAMES:  Yes, Your Honour.

GAUDRON J: Should it not have been quashed as regards the

fourth defendant?

Mihailovic(2) 3/2/94

MR JAMES: Whatever should have been the proper course, it

is our submission that what happened on it, as far

as Morgan was concerned, was entirely irregular.

DAWSON J:  But it was made plain by ..... did not intend to

proceed on the first indictment.

MR JAMES:	Yes, Your Honour.
DAWSON J:	Why is that not a nolle prosequi?
MR JAMES:	Your Honour, it certainly, whatever the technical

description of it be, the Crown communicated

adequately to the Court an intent by that stage

that it did not want to go ahead on that indictment

against this accused, not only because it might

have produced embarrassing problems of pleading

relating to a trial of one or a trial of that one

with other persons not named in the indictment, but

for the primary reason that, on that indictment on

which issue had been joined, he had put himself

upon his country - - -

DAWSON J: But that does not matter if the nolle is entered.

MR JAMES:  No, but the Crown did not want to go ahead on

that because it wanted the position of being able

to reject the plea of manslaughter.

DAWSON J: That is the Crown's prerogative, not to go ahead

with an indictment, if it chooses not to do so.

MR JAMES: Certainly, Your Honour, but it is also, or has

been at least since Barton, a matter to which the

court could have regard when the Crown is before

the court and process is filed to ensure that it

can regulate its proceedings and regulate what is

done on the indictment to avoid injustice and

unfairness.

DAWSON J:  Done on which indictment?

MR JAMES:  On both in this case, in our submission,

Your Honour.

DAWSON J: There is no longer an indictment once a nolle has

been entered.

MR JAMES:  Your Honour, in this case there was an immediate

substitution. There was one set of proceedings

from first to last and the supreme court was

literally at a point of time only instantaneously

without an indictment on its file, and that only

for the purpose of enabling the substitution of the

next document.

Mihailovic(2) 6 3/2/94

TOOHEY J: Are you saying that the trial judge had no power

to accept the fresh indictment, or that having

regard to what had taken place earlier, he ought

not to have accepted the fresh indictment?

MR JAMES:  I am not saying the first, Your Honour. We are

not saying he had no power to accept it.

TOOHEY J:  So we are not concerned with questions of power and validity. We are really concerned with the

trial judge's control of the trial that was to

begin before him.

MR JAMES:  And indeed, Your Honour, the only power reference

we would make is that he had power to control the

trial in such a way as to avoid what he

characterized in the application book at page 97 as

"monstrously unfair".

BRENNAN J: What was monstrously unfair?

MR JAMES:  What His Honour said was at line 17:

I have a personal feeling that it is

monstrously unfair that of the eight, four

have been dealt with for manslaughter, while

these risk a conviction for murder. ·

The short background to that, Your Honours, is

eight had been charged. Of those, seven had been

committed for manslaughter after having initially

been charged. One at committal, as one can in New

South Wales, pleaded guilty for manslaughter and

was committed for sentence.	The others were
committed for trial.	The bill was found for

manslaughter and those seven were invited to plead

guilty for manslaughter.

Morgan appearing with counsel, who was

instructed for the purposes of the mention, was

arraigned, pleaded not guilty because of some

confusion that the evidence does not make entirely

clear. Immediately thereafter, his legal
representatives confirmed to the Crown that he

wished to plead guilty to manslaughter and that the

plea to manslaughter was still open, and sought to

arrange for the listing of that plea. For reasons

that are even less clear, that listing could not be

arranged for a month or so. At the conclusion of that month, the Crown informed the legal advisers

that the matter was to proceed for murder - - -

DAWSON J: Having in the meantime learned that they had

evidence which they did not previously have.

MR JAMES:  No, Your Honour. The Crown was aware of the

factual material from the records of interview of

Mihailovic(2) 3/2/94

each of the accused. By 5 December the Crown was

aware that two of the accused who had been

sentenced, and upon whose pleas there had been

discussion of them getting evidence, were prepared

to give evidence in accord with those records of

interview, of which all parties had been aware up

until that date.

DAWSON J:	So the Crown case changed for the better.
MR JAMES:	No, Your Honour, with respect.

DAWSON J: That is an unfortunate way of putting it but it

was a stronger case for murder.

MR JAMES:  We would say "No", Your Honour, with respect. It

was stronger in the event that there was a problem

about the record of interview of Morgan. It was

more detailed but all it amounted to now was that

the Crown had co-accused, co-offenders, able to

give evidence.

BRENNAN J:	The fact is, having regard to the verdict of the jury, that he was a person who had committed
murder.  He had been arraigned for manslaughter,
having pleaded not guilty to that, and then the
Crown said, "We'll charge him with the offence of
which he is in fact guilty", and he is convicted.
Where is the monstrous unfairness in that?
MR JAMES:	Because, Your Honour, the Crown had charged four

of the others with manslaughter only and in the

case against them proved exactly the same matter as

to intent and to elements and with no

distinguishing basis as to two of them at all -

BRENNAN J: It would have to be distinguishing, it would

have to an intent on the part of each one.

MR JAMES: That is so.

BRENNAN J: And in the case of Morgan, his intent to cause

grievous bodily harm which the jury have found.

MR JAMES:  Yes, Your Honour.

BRENNAN J: That was not material in the other cases.

MR JAMES:  It was in evidence, Your Honour; it was not

material. Indeed, two of the trial judges found in

the cases as against them exactly that intent and

specifically pointed out they had to for the

purposes of sentencing, in line with De Simoni,

totality of the evidence showed that they had done

ignore that intent. But in the case against

Mihailovic(2) 3/2/94

in effect for this purpose no more or less than he

had done.

BRENNAN J: But what you are saying is that here were a

number of people who were guilty of murder and some

have been convicted only of manslaughter.

MR JAMES:  Yes, and that because - - -

BRENNAN J: But some have been rightly convicted of murder.

MR JAMES:	No, I am not saying rightly, Your Honour.
BRENNAN J:	Why not?
MR JAMES:	I am saying that lawfully they have been

convicted of murder.	The evidence was there and
the jury found it.

BRENNAN J: But you say not rightly, because unjustly.

MR JAMES:  I am saying that in this case, that as amongst

all of these accused, certain of those accused have

been dealt with in a way which might be lawful on

the totality of the material but considered more
broadly than their own individual case, considering
the administration of justice in relation to all
these accused together, then they have been dealt
with in such a way that not only would an observer

regard the system as falling into disrepute; he

would think, as the trial judge himself noted after

hearing all the material, that what had happened

was monstrously unfair and that the confidence in

the system would thereby be diminished.

The reason His Honour drew that conclusion is that the very evidence that Your Honour

Justice Dawson referred to was the very evidence that established an equality of culpability amongst

all these persons. The Crown had made the offer of

the plea. There was no suggestion of any notice

being given of any time being up or any matter of
that sort. There was a legitimate basis for

expectation that that offer would be maintained

long enough for the accused to take advantage of

it.

DAWSON J:  I do not see why there was an expectation. If

additional evidence was going to be forthcoming and

it was quite likely certainly once the pleas were

known, why would there be that expectation?

MR JAMES:  But, Your Honour, it had always been the position

from the committal that one of the accused had

pleaded guilty.

Mihailovic(2) 9 3/2/94

DAWSON J:	The Crown took the view that it could not prove anything more than manslaughter against these men
and therefore it was prepared at that stage to
accept a plea to manslaughter. Subsequently when those who accepted that opportunity and pleaded
guilty and made their plea, they were available to
give evidence. The Crown case became stronger and
it was available to the Crown to proceed for
murder.  Where is the injustice in that? It may be
that those who pleaded guilty to manslaughter were
fortunate, but it does not mean in the circumstance
their good fortune should be carried through to the
others in the changed circumstances.
MR JAMES:	No, it is not, Your Honour, so much that the good

fortune should be carried through to others in the

circumstances. The others were offered no

opportunity of any kind, because of the procedure

that was adopted. The results produced, in our

submission, an entirely unjustifiable disparity to

an observer in result in terms of the charge, in

terms of the sentence; there was an irregular

procedure whereby that offer that had been made to

them and their legitimate expectation was defeated

and there was no substantive basis, as in amongst
any of the accused, for any discrimination, except

in terms of the coincidence that in the way in

which the listing proceeded - - -

DAWSON J:  I do not understand that. There was every

explanation the Crown could not or felt it could not prove murder in relation to the first set of

accused, circumstances changed and the Crown could

and felt it could prove murder and so charged it.

MR JAMES: But, Your Honour, what I am seeking to say is

that the discrimination, the change in

circumstance, happened solely because of a matter
of sheer timing as a result of the way in which the

indictments had been drawn and the vagaries of the

court list and the fact that a barrister was simply

there for a mention rather than briefed to advise.

Now, that is what happened, that is to say, the

two, whose evidence were given, simply accepted

that plea on that day. It was not in any way an, as it were, attempt to discriminate between those

who might have some distinguishing basis

inculpability or some ability to give evidence or

who had made an offer to give evidence before plea.

DAWSON J: Your client may have been well advised, if he had

thought of it, to have pleaded guilty at the time

he said he would, to manslaughter, and he may well

have thought, "If I do not do so" - if he thought

ahead - "these people. who are convicted and

sentenced will be available to give evidence

against me and the situation might be different and

Mihailovic(2) 10 3/2/94

that I really should plead guilty", but he did not

and that situation did occur. But how can it be

unfair to convict a man of murder when he is guilty

of murder?

MR JAMES: 

Your Honour, it is not so much that it is unfair

to convict a man of murder who is guilty of murder,
but that in a joint enterprise, when all are
equally culpable and, indeed, when one cannot point

to the death having been occasioned by any one.

DAWSON J: But these things happen. Sometimes people are

given indemnity so that you have evidence against

those who are most responsible.

MR JAMES:  Your Honour, of course it happens that there

is - - -

DAWSON J: And that someone goes scot-free for the sake of

convicting a sufficient number.

MR JAMES:  Yes, Your Honour, all of that is so, but if the matter - - -

DAWSON J: Maybe that is unfair in a sense, but that is the

way the world operates.

MR JAMES:  If the matter was in the control of the court,

because there is the necessity to deal with the
process and because the court is apprized of the
facts and if the court has to lend, by the process
of recording the various convictions, the passing
of the various sentences, its weight to the
discrimination which falls because of that way of

the world coincidence - - -

DAWSON J:  The courts are not the prosecutor, the Crown is

the prosecutor.

MR JAMES: Certainly.

DAWSON J:	The court tries the prosecution.
MR JAMES:	But the court is able, when seized with the matter, to do what it can to ensure that not only
is there fairness in the individual case, but there
is fairness in the administration of justice so
that, on the totality, there is no - - -

DAWSON J: What do you suggest the court ought to have done?

MR JAMES: Well, in this case, Your Honour, all the court

had to do was to exercise that discretion to reject

that second indictment or to permit that earlier

indictment to stand, to proceed on the plea.

Mihailovic(2) 11 3/2/94

BRENNAN J:  What discretion has a court to reject an

indictment?

MR JAMES:  Because there is one already on file for the very

offence charged, Your Honour.

BRENNAN J: Well, let us assume that it was set aside and

that it was nolle entered. Let us assume that that

had been the procedure followed.	What would have
happened to your argument then?

MR JAMES: Well, if that were happen, the question would

arise as to whether putting the accused to trial on

that indictment would amount to some such matter as

against which a court can relieve, relying on the

doctrines in Barton and Jago, and Dietrich.

DAWSON J: What you are saying is the second indictment,

there having been a first one, even assuming it to

be nolle, was an abuse of process of the court?

MR JAMES:  It may well have been, Your Honour, or to proceed

with those witnesses - - -

DAWSON J:  How can it be an abuse of process of the court

to proceed on a charge of murder, and when the

accused is given a fair trial and he is convicted

of murder, how can you say that is an abuse of

process?

MR JAMES:  Your Honour, all we can submit in that regard is

not that proceeding on such a trial would have left
him at some impermissible advantage or

disadvantage, all we can say is that in the result

what happened in relation to the one crime had to

run that very real risk of producing an

unacceptable disparity of result. The community

would justifiably be appalled at the proposition.

DAWSON J:  It is not an unjustified disparity result. Some

were convicted of manslaughter; your client was

convicted of murder.

MR JAMES:	Yes, Your Honour, and indeed -
DAWSON J:	One carries a heavier sentence than the other.
BRENNAN J:	The community might well be appalled at the fact

that some of these people who are evidently guilty

of murder got off much lighter than they should

have.

MR JAMES:  They may well have, Your Honour, if that was the

case.

Mihailovic(2) 12 3/2/94

BRENNAN J: That does not mean if they are going to be

appalled at the conviction of people for murder who

are guilty of murder.

MR JAMES:	No, but they may well be appalled that one group have to bear the stigma of a conviction for murder,
as it were, carrying the general deterrent,
notwithstanding their equality of culpability with the others. Surely it is not the task of the criminal law to, as it were, utilize one portion of those guilty as scapegoats.
Now, the willingness, the contrition, the willingness to give evidence, the willingness to
co-operate in no way differed.  It happened to be a
coincidence that these two were able to take advantage of that, and it is not a case that there was ever any rejection of the plea as there was in
Hui Chi-ming. In the case of Morgan, his plea of
not guilty was entered apparently on the basis not of rejecting the offer but because of the problem that arose that specific day on the mention.

None the less, Your Honours, the solicitors

sought to arrange to have the matter put in the

list immediately thereafter, and it was purely as a

result of the court listing system that the matter

went over to the 14.

TOOHEY J:  Mr James, I am just having trouble putting my

finger on the argument. At one point you appear to

be saying that the trial judge should, at the

outset, have rejected the indictment for murder,

having regard to the existence of an indictment and conviction for manslaughter in the case of some of· the other accused. You do not say that as a matter of power or obligation, but rather the normal

circumstances he should have exercised his

discretion that way. Then you appear to be saying,

"Well, when you see what happened at the end of the

trial then that discloses a miscarriage of

justice." Now, what is this Court supposed to be

looking at? The position of the trial judge before

the trial began or at the end of the trial, or

what?

MR JAMES:	It is our submission that there was a miscarriage of justice at the end of the day. That miscarriage
of justice can be detected by looking at what
occurred at the time of the substitution of indictments; that indeed that miscarriage can also
be detected by looking at the eventual result in
the light of the record as it stood relating to all
the accused.  It matters not which way one gets
there, and indeed, that is why in our summary we
deal with procedure on page 1, the irregularity in

Mihailovic(2) 13 3/2/94

paragraph 2, and then in paragraph 4 the upshot,

the result.

TOOHEY J: That is what I have difficulty with because if

you cannot meet the first hurdle, namely, that the

trial judge was obliged in some way or other in the
exercise his discretion to refuse to accept the
indictment for murder, it was always on the cards

that the applicant was going to be convicted of

murder. So what is it that then allows this Court

to look at all the subsequent events in order to

decide whether there was a miscarriage of justice?

MR JAMES:  The subsequent events, Your Honour, are to be

taken in conjunction with what had occurred

beforehand, and in particular, the fact that there

was the offer of a plea, the attempt to take it up

following the arraignment, and the purely

fortuitous circumstance that prevented it being

taken up. If the result had, of course, been

manslaughter we would have no right to be here.	So
it is only in that eventual result of murder that
we come here.

BRENNAN J: Could you articulate what you say is the

miscarriage of justice?

MR JAMES:  The miscarriage of justice is, as best one can

put it, Your Honour, that the processes of the
court were utilized to achieve unequal treatment
amongst those of equal culpability in respect of

the one crime, and to exclude judicial intervention

where the judge was of the view that what was

happening was monstrously unfair. It is both

procedural and a result.

It is both procedural and a result. I

appreciate what Your Honour Justice Dawson has put

to me and what the Court of Criminal Appeal has put

to me concerning the appropriateness of the

conviction of murder of those against whom there is

evidence and a case of murder but, in our

submission, the means that are resorted to to

discriminate and to achieve that conviction are

means that notwithstanding there may be evidence

sufficient to warrant a conviction, may still, for the protection of the repute of the administration of justice, call for judicial discretionary

intervention.

This Court in Lowe has in the sentencing context looked at the question of disparity in

sentence and in particular as to whether that

disparity discloses some form of undetected but inherent error or whether the fact of disparity

itself is what is to be looked at. In that regard

it can be seen when one looks at Lowe that the

Mihailovic(2) 14 3/2/94

disparity itself is seen as going to the justice of

sentences.

TOOHEY J: Could you have complained if at the outset your

client had been charged with murder and perhaps two of the others had also been charged with murder and

the remainder had been charged with manslaughter?

Could you have said, "Well, that's not fair"?

MR JAMES:  The answer to that is "Yes". Would the Court

have been able to intervene may be a different

thing. We do not contend that the director - - -

TOOHEY J:  No, but right from the outset, from the time of

their arrest they were charged.

MR JAMES:	Yes, I appreciate that, Your Honour. Whether the court would be able to intervene might be a
different thing because the director, plainly, is entitled to indemnify accused and to bring them
forward as witnesses and thus to procure a
difference in result but it is a different thing
when the director comes to the court seeking to use
its process to get rid of what amounts to an inconvenient process in the light of the view he
has then formed.
It is our submission, although there has been no Australian case since Barton in the common law
world, as far as we are aware, that the doctrines
applicable to indictments referred to by this Court
in Barton equally apply to a nolle prosequi or,
indeed, the exercise of a statutory power to - - -

BRENNAN J: What doctrines are you speaking about?

MR JAMES:  The doctrines to consider whether the court's

processes being invoked might be abused by the way

in which a prosecution is proceeding. I am not now

speaking of reviewing any prosecutorial discretion

or function, at least in New South Wales. Whether	there might be a different circumstance with the
Director of Public Prosecutions for the Commonwealth matters not here.

I am saying that the court has power when the

court's process has already been invoked to protect against unfairness in result and to protect against

procedures which might be unfair. Unfairness is

not limited to a risk of a wrong result but

includes, in this context, the disparity kind of

unfairness referred to by this Court in Lowe.

DAWSON J: Did anyone submit that the preferring of the

second indictment was· an abuse of the process of

the court and apply for a stay?

Mihailovic(2) 15 3/2/94

MR JAMES:  Yes and, indeed, that is what brings us here.

The trial judge delivered a judgment in respect of

that, holding that, in effect, there was nothing he

could do, that the procedure was such as to, in

fact, deprive him of any real power. He seemed to

believe that Mr Justice Wood, on a previous

occasion, had granted an amendment of the already

existing indictment. He was of the view on the

material then before him that if he had a

discretion to grant leave to amend he would have

exercised it in favour of the Crown and then, after

hearing the very material on which the Crown

relied, the evidence of French and Jong, and

hearing the Crown case subject to a discharge in the meantime, up to the close of the Crown case,

reached the view that proceeding was monstrously

unfair, as he refers to it.

DAWSON J: He may have taken a view of a discretion. It may

have been a discretion he would or would not have
had but he found that there was no abuse of process

here.

MR JAMES:  He found initially there was no abuse of process,

Your Honour, but His Honour confined, in our

submission, the matters that he regarded as capable

of amounting to an abuse too narrowly in the light

of Hui Chi-ming itself and in the light of other

decisions and, in particular, this Court in

Dietrich, Walton v Gardiner and Jago. In our submission His Honour was taking the view that if

the proceedings are regular and if there is

evidence and if the Director wishes to take that
course, then absent some such directorial abuse has

been hitherto noted, then there was no abuse of

process.

DAWSON J: Yes.

MR JAMES:  However, Hui Chi-ming deals with almost an

analogous situation except that in that case the
accused quite deliberately rejected the plea and

sought to go to trial and then complained in the

upshot when there was a conviction for murder.

Indeed, the Judicial Committee characterized

what had occurred in that case notwithstanding that

it was his own choice, as a serious anomaly. In

the result, the principal in the first degree, in
that case, received a sentence for manslaughter;
the accused, the death penalty. And that was,

however, in our submission, not only a very

different situation, but a situation in which what

Their Lordships said can be positively relied upon

here, because - if I might take Your Honours to

Hui Chi-ming, (1992) 1 AC 34, the judgment of

Their Lordships appears at page 40G, the facts are

reviewed at page 41 commencing just below point B,

Mihailovic(2) 16 3/2/94

but the grounds, which appear at the top of
page 41, are firstly a ground of:

exclusion from evidence of the fact that the alleged principal offender had at an earlier

trial been acquitted of murder and convicted

of manslaughter;

and secondly, an -

alleged misdirection of -

common purpose, and thirdly:

the alleged abuse of process constituted by the prosecution of the defendant for murder after the alleged principal offender had

merely been convicted of manslaughter.

The facts in short form refer to

Miss Lo Kwai-ying having had a boyfriend of whom

the family disapproved.	Ah Hung was asked to speak
to his sister, attempted to frighten her.	She

telephoned the boyfriend and there was a view that

she had been bullied. Ah Po wanted his friends to

look for Ah Hung and to look for someone to hit.

Ah Po left with two others and a length of water

pipe and the tall man wearing glasses was seized by

four, five or six of the group.

He was struck by the metal pipe, wielded, as

the Crown alleged, by Ah Po. The man, who was

not Ah Hung and was a perfectly innocent

victim, received numerous ..... wounds -

from which he later died.	Ah Po left and there was
remonstration with Ah Po.

Ah Po and three of the group ..... were indicted

for murder ..... All four pleaded not guilty.

Ah Po was tried by a jury ..... The second

defendant changed his plea to guilty ..... and

was remanded in custody for a new

trial ..... The third defendant pleaded guilty to manslaughter at the outset ..... The fourth

defendant was acquitted and discharged on the

fourth day of the trial ..... the Crown offering

no further evidence against him .....

The defence of Ah Po at his trial was

that he had nothing to do with the incident.

He did not suggest provocation or diminished

responsibility. By unanimous

decision ..... acquitted of murder and convicted

of manslaughter. He was sentenced to six

years' imprisonment.

Mihailovic(2) 17 3/2/94

The defendant ..... was

arrested .... -.initially charged with

manslaughter ..... on the advice of another

Crown counsel ..... the defendant was indicted

for murder. The same procedure was followed

with another friend of Ah Po ..... subsequently

jointly indicted ..... for murder -

after having initially been charged with

manslaughter.

On the first day of the trial, Sze

pleaded not guilty to murder but guilty to

manslaughter, and the Crown accepted the

plea -

Hui Chi-ming chose to reject that opportunity, it having been extended to him by way of offer from

Crown counsel and in due course he was convicted of

murder.

Your Honours, at page 53G Their Lordships turn

to the question of abuse of process:

The defendant contended that in the

circumstances to prosecute the defendant for

murder rather than manslaughter amounted to an

abuse of process which would have justified

and even called for the trial judge's refusal

to allow the prosecution to proceed. It is

unfortunate, in a matter involving the

exercise of discretion, that no application

based on this ground was considered suitable

to be made either in the court of trial or in
the Court of Appeal of Hong Kong (both of

which courts would have been specially

qualified to form a view), but this Board,

even at this stage, has jurisdiction to

intervene in a proper case.

It will be remembered that Ah Po, though

charged with murder, was convicted of
manslaughter and that the defendant, when

arrested nearly two years after the event, was

originally charged with manslaughter but was

later indicted on a charge of murder.

Thereafter are set out the particular numbered

submissions put on behalf of the defendant. That

is, that the substitution:

was oppressive and an abuse of process ..... in the following circumstances: (1) the primary

party had been acquitted ..... (2) the pleas of

the three other participants, of guilty to

manslaughter, had been accepted by the Crown;

(3) there was no evidence that the [defendant]

Mihailovic(2) 18 3/2/94

had played any particular part or struck any

particular blow in the incident; (4) Crown

counsel was at all times prepared to accept a

plea from the [defendant] of guilty to

manslaughter; (5) the only reasonable

inference -

it is said that arises from the above -

is that the purpose of charging the

[defendant] with murder was to put unfair

pressure upon the [defendant] to plead guilty

to the lesser charge -

which was an attempt to assert a mala fides

Williams v Spautz, as it were, application in

criminal proceedings.

DAWSON J:  No, those points are answered compendiously just

below Con page 57, are they not?

MR JAMES: Yes, Your Honour, and the exception is what we

would turn to. The points are answered seriatim at page 56, Your Honour, and the court was of the view

at page 57, defining abuse of process, just below B •• . .

that is, something so unfair and wrong that

the court should not allow a prosecutor to

proceed with what is in all respects a regular

proceeding. There can be no suggestion that
the defendant was the victim of a plea

bargaining situation since he did not plead

guilty to the lesser offence. There was no

sign of fraud or deceit and, as between the

Crown and the defendant, the charge was fair.

Their Lordships recognise that it would

be permissible to ask whether the Crown should

have persisted in seeking a verdict of guilty

of murder when a finding of manslaughter would

have produced equality among the accused.

There seem to be two answers. One is that,

provided the case was conducted with

propriety, it is difficult to see how the
judge could properly have intervened to
prevent counsel from seeking or the jury from

returning a verdict which was justified by the

evidence.

And, in this case, Your Honour, there was a
mechanism, we submit, that would have, because of

the indictments being filed, permitted that

intervention.

The other answer is that:

Mihailovic(2) 19 3/2/94

it was not an abuse to indict and prosecute

for murder, it could scarcely be an abuse to

evidence.	seek a verdict which was justified by the
We have to accept that that narrow regard,

that regard to the verdict and its justification on
the evidence as being an abuse is something we

cannot and do not assert. Now, Your Honours, the

relevant passage, in our submission, is when one

reads through that passage commencing at 56E

through to 57, what we have is a finding that it

would not be an abuse to prosecute a person for

murder, who has rejected the opportunity of a plea

to manslaughter, unless to do so would be to

involve some bad faith, some defects in

proceedings, or would bring the administration of

justice into disrepute. Now, in those

circumstances, Hui Chi-ming - - -

MASON CJ: But where did Their Lordships say anything about

bringing the administration of justice into

disrepute?

MR JAMES: Well, Your Honour, they are, in fact, my words

and that, in our submission, is what one gathers in

totality from those passages at 56 through to 57.

What the court is indicating is that it is entitled

to look to the result as well as to the components,

the procedures and the result.

BRENNAN J:	The passages from 56 to 57 are the numbered arguments listed in the defendant's case. Their
Lordships' dealing with the arguments commences at
57B. What comfort do you get from 57B onwards?
MR JAMES:	Something so unfair and wrong that the court
should not allow a prosecutor to proceed with
what is in all respects a regular proceeding.

And, Your Honour, at 56 there are those defence	arguments dealt with seriatim but, in addition,
Their Lordships refer to matters to which they have regard, particularly, for instance, would the charge of murder be called an over-charge, was the
defendant unfairly put at risk; all of those
matters are dealt with.

MASON CJ: 

I must say for my part I see very little on page 57 that gives you any comfort, Mr James.

MR JAMES: 

Your Honour, in our submission, Hui Chi-ming is a

much narrower view of abuse of process that has
been adopted in Australia, particularly in Dietrich

and in Walton v Gardiner and in Jago. But even if

one looks at Hui Chi-ming, in our submission, we

are not out of court.  The Court of Criminal Appeal

Mihailovic(2) 20 3/2/94

did look to Hui Chi-ming as though it disposed
entirely of what could or could not be an abuse.

It was dealing with a case where, as I said, there was a deliberate rejection of a plea and a

rejection in those circumstances.

Your Honours, could I turn to that passage in

Lowe, (1984) 154 CLR 606, relating to disparity,

in the judgment of the Chief Justice at page 609 at

approximately point S, dealing with this question

of disparity in sentence:

The true position in my opinion may be briefly

stated as follows. It is obviously desirable

that persons who have been parties to the

commission of the same offence should, if

other things are equal, receive the same

sentence, but other things are not always

equal, and such matters as the age,

background, previous criminal history and

general character of the offender, and the

part which he or she played in the commission

of the offence, have to be taken into account.

The fact that one co-offender has received a

sentence which is more severe than that

imposed on a co-offender whose circumstances

are comparable would provide no reason in

logic for reducing the former sentence, if the

only question were whether that sentence,

viewed in isolation, was manifestly excessive.

DAWSON J: But we are talking about convictions for the same

offence here.

MR JAMES: Yes, they are. But, Your Honour, to - - -

DAWSON J: That is not this case.

MR JAMES:  Certainly, but to stand back and to say to the

director, "Well, Lowe would apply if you charge

them with the same offence", and at this time the

maximum for manslaughter was life imprisonment - to

stand back and say, "If you charge them with the

same offence they may have to be dealt with alike

if they are convicted of like offences; but that

if you charge of different offences although of

equal culpability on the same facts, then we must

distinguish between them and sentence", is to yield

to the Director, as it were, the ability to define

the parameters, notwithstanding that - - -

DAWSON J: But he does, because he can decide what he

charged the person with.

MR JAMES:  In that case, Your Honour, what the courts are

doing, is yielding to the Director that ability to

artificially, in the case against each accused,

Mihailovic(2) 21 3/2/94

produce a situation where he can define the

sentence himself rather than the facts define the

sentence.

BRENNAN J:  He cannot define the sentence; he can eliminate

some elements which otherwise the judge, who is

passing the sentence, would be entitled to take

into account. I mean, in this situation here, the

reason why the manslaughter people got lighter sentences was because of the rule that a judge

should not sentence on a basis which is

inconsistent with the - - -

MR JAMES: Plea.

BRENNAN J:  - - - well, with the verdict or the judgment.,

at all events. You have got to get some underlying

problem about the verdict or the judgment to make

this argument of yours run on alone.

MR JAMES:  If one looks at it from the other viewpoint, in

the evidence admissible against Morgan, on Morgan's
plea, is included the fact of the sentence of the

co-accused and the fact that the co-accused had the

relevant intent.

BRENNAN J:	No, no.
MR JAMES:	In the case against Morgan.

BRENNAN J: But that is the whole point. If you are looking

at the case of the co-accused in sentencing Morgan,

you can only look at that sentence for comparative

purposes on the legal footing that the sentencing

judge was not entitled to take intent into account.

MR JAMES: Certainly, on the legal footing, but I am talking

now, Your Honour, about the facts, the equal
culpability. In the case against Morgan, you are

entitled to say, as indeed the sentencing judges

did say here, there was - for the purposes of what

I now say, I am not going to the niceness of discrimination that it might otherwise be called -

there was equal culpability, a sharing of the

intent on the joint enterprise, that is that

grievous bodily harm should be sustained, and when

defining the various factual roles, one can see

what each individual did and what part Morgan

played in that context. When it comes to the
purpose of examining sentence, I should have regard

to what sentences have been passed upon your co-

accused and in that regard I must ignore the

question of intent as making up any component in

that sentence that has been passed upon the co-

accused, because the Crown did not see fit to

assert, as against that co-accused, in his case,

that element, but they are asserting it against

Mihailovic(2) 22 3/2/94

you; they are not only asserting your iLtent, they

are asserting his.	You joined with all of them
sharing that intent.

BRENNAN J: That is the whole problem is it not, because the

judge who was sentencing Morgan cannot find, as

against the other accused, that they had the intent

which he finds the jury have accepted as against Morgan?

MR JAMES:  Your Honour, the judge sentencing the co-accused cannot find that he had such an intent.

BRENNAN J: A fortiori, one would think. The judge

sentencing Morgan ..... do it.

MR JAMES:  He is not sentencing those co-accused. He is

evaluating what that sentence of the co-accused is,

and he is able to say, to put it in sort of

mathematical terms, "It is x minus the amount that

would have been there for intent". But not when

there is a different charge. When there is a

different charge, it is the lesser sentence
applicable to the lesser gravity of the charge,
less the factual element as well. It is not just a
matter of saying the Crown does not assert this

fact against X, it is also a matter that the Crown

asserts a less grave charge against X.

Now, that is to leave the person whose

culpability on the evidence available against him

of what they all did, as inflated by comparison,

and inflated by two things: by facts and charge.

There is a disparity there to the observer looking

at the treatment and the results, for all of them,

when looking at Morgan's case.

TOOHEY J: But you have moved the whole argument from the

trial process to the sentencing process, Mr James,

have you not?

MR JAMES:  No, I am trying to come back again, Your Honour.

What I am trying to get - - -

TOOHEY J: Well, there may be a proposition, and you appear

to have one in your summary of argument, that there

was a disparity in sentencing. Well, that is an

argument that one can understand, but we are not in

that realm, are we?

MR JAMES:  I was answering the question that Lowe applied

only to sentence and was seeking to point out that the remarks that are made there as to sentence can be equally as applicable to the result occasioned

by the disparity in charging which is reflected in

sentence. So that the simple fact that there is a

different charge for two co-accused does not

Mihailovic(2) 23 3/2/94

necessarily amount to such a disr,rimination so one

can say that there cannot arise any question of

disparity of sentence, or disparity of treatment,

which is not caught by what Your Honour the

Chief Justice refers to as the "badge of

unfairness" later on in the judgment.

If there is some such disparity as that, and

if that does wreak an effective kind of

unfairness - the Court of Criminal Appeal referred

to it as a possible kind of unfairness, and the

trial judge referred to is as a monstrous

unfairness - then the opportunity extended to the

court earlier in the piece to guard against it, or

to prevent it, by intervention in discretion is one

of which the trial judge should have availed

himself. You can come to it from either end, in

our submission. What I am trying to seek at the

moment is from Lowe the proposition that one does

not simply view what happened to Morgan in

isolation, one views it in the context, not only

for the sentencing viewpoint, but also from the

charge and the treatment of the co-accused.

TOOHEY J: But those are not assessments the trial judge

could have made. That is an argument you might

possibly advance to an appeal court, but the trial

judge can hardly be criticized on the grounds that

he did not carry out that sort of assessment, apart

from anything else he would not have had the

material.

MR JAMES:  He did, Your Honour. He knew about the

charges -

TOOHEY J:  He would have had it in terms of depositions, no

doubt, the trial record, perhaps.

MR JAMES:  He knew about the charges and the pleas, and so

forth, at the time this trial went ahead.

TOOHEY J: Yes, I am not talking about that. I thought you

were suggesting that somehow or other the trial

judge is at fault for not evaluating relative

responsibilities in order to reach a decision as to

whether or not he would reject the indictment for

murder.

MR JAMES: At page 97 of the application book, Your Honour,

he does that. What happened is that by that stage,

not only had the co-accused pleaded but also had

been sentenced and called in evidence before him
and, indeed, there had been some considerable

debate over the question of whether there could be

reference to the charge to which they had pleaded.

His Honour had heard their evidence and had heard

Mihailovic(2) 24 3/2/94

how those who had been dealt with for it had been

dealt with by this stage.

It is at that point that His Honour reached

the conclusion that the continuation of the
proceedings to the risk of conviction of murder of

these accused, in the light of what happened to the

co-accused, was monstrously unfair. What

His Honour is doing, at that stage, is reaching

some evaluation and doing so only on the basis of the material known to him, which was the material

which was in court.

MASON CJ: But, do I understand it? You are saying that the

trial judge should have rejected the indictment,

applying the principles in Lowe, because the moment

an attempt was made to indict the applicants for

murder, it would necessarily result in a different

sentence?

MR JAMES:  No, Your Honour, I am not going that far.

MASON CJ: Well, I thought that was what you were putting.

MR JAMES:  No, Your Honour. What I am saying is that

initially, in terms of the procedure, His Honour

was in a position where he had a discretion to

proceed on the manslaughter indictment and to defer

or reject - it need not have been necessarily

rejection at that stage - the indictment for

murder, to ensure, in short, that manslaughter plea

was taken and - - -

MASON CJ: But if in fact he did not have a discretion to

proceed on the manslaughter indictment because a

direction had been given by the director that

further proceedings would not be taken on that

indictment, that would be the end of this argument.

MR JAMES:  No, because manslaughter is also in the second

indictment, Your Honour; it is an indictment for

both murder and manslaughter.

MASON CJ: Yes, I follow.

MR JAMES:  And indeed, though the whole trial the two

charges were there, murder and manslaughter. And

His Honour having reached the view later in the

trial that the material was there which made

proceeding monstrously unfair, was entitled to

intervene at that point. Now, he did not have the

whole of the material on the first occasion, but he

had by the latest point.

BRENNAN J:  To do what? What could he have done?

Mihailovic(2) 25 3/2/94

MR JAMES:  To stay the continuation of the murder charge; he

could have continued on manslaughter.

MASON CJ: But I thought you were saying earlier he had a

discretion to reject the indictment.

MR JAMES:  Yes, but by the time he had got to this point,

Your Honour, it was the only indictment in front of

him. He could have rejected it in that form, he

could now have stayed proceeding on it for murder,

directed proceedings to be continued for

manslaughter - - -

DAWSON J: Well, that is a very odd proposition, that is

saying that the judge can direct the Crown what

counts go into the indictment.

MR JAMES:  No, Your Honour, because the indictment is in

court.

DAWSON J:  I know, but he is saying, "You cannot have that

count of murder. We will regard this as a count of

manslaughter." That is what you are suggesting.

MR JAMES: But, Your Honour, the judge rejects counts in the

indictment all the time, either because the trial
of them is inconvenient or because there is no

evidence or because of some other matter in the

fair conduct - - -

DAWSON J: Yes, in those circumstances, but here there was

evidence, and the Crown wished to proceed, how can

the judge directs what counts?

MR JAMES:  In the fair conduct of the proceedings,

Your Honour, the judge can sever indictments, he

has great power at that stage - - -

DAWSON J: Leaving the counts which are severed to be tried

in other proceedings.

MR JAMES: Well, that may be, they may await the result

because of the effect that a conviction or an

acquittal in one set of proceedings may have on

those counts in any later set of proceedings.

DAWSON J: But, I do not know any authority to say that a

judge says, "These are the appropriate counts

against this man. Now, you act accordingly."

MR JAMES:  I know of no direct authority, Your Honour, that

suggests that - - -

DAWSON J:  It is entirely alien to the function which a

judge has and the Crown has.

Mihailovic(2) 26 3/2/94

MR JAMES:  What is a judge to do, Your Honour, when he

concludes that the proceedings in front of him are monstrously unfair in the light of the totality of the material that has been put before him by the

Crown?

DAWSON J: 

If he decides there is an abuse of the process of

the court he can stay the proceedings, but if he
decides there is not, that it is.

MR JAMES: 

If he decides, Your Honour, that they are

monstrously unfair, in our submission - - -

DAWSON J: Well, he has used that phrase and there can be

debate about that, but there is no abuse of

process.

MR JAMES:  What His Honour has done when he has reached that

view is to have regard to matters which might well

have minded him to consider there was an abuse, but

he is of the view that there is nothing that could

be done about it and nothing proceeds, indeed,

there is the further submission made, but there is

no further inquiry as to whether that amounts to an

abuse, presumably because of what His Honour has

said earlier on when His Honour reached the view

that he, in effect, had no power to intervene in

such circumstances, the indictment point having

been disposed of against the applicant.

Now, it is our submission that the judge

always has a discretion right throughout a criminal

trial to guard against unfairness and to ensure

that there is justice done.

TOOHEY J:  I do not understand what you mean by

"unfairness". I mean in the Jago sense a question

can arise as to whether this person can have a fair

trial in the sense that has the trial been so long

delayed that the witnesses have died and so on, but

you are not using it in that sense.

MR JAMES:  No, I am not.

TOOHEY J:  You are not saying that this man could not have had a fair trial on the indictment for murder. You

are saying it was unfair to charge him with murder

or to indict him for murder.

MR JAMES:  Jago, Your Honour, looks at the trial in the

sense of the indictment, the opening, the evidence,

the arguments to the jury and the verdict.

TOOHEY J: But you are using "unfairness" in a very loose

sort of sense.

Mihailovic(2) 27 3/2/94

MR JAMES:  No, Your Honour, a wider sense but not loose.

The trial I am talking about here is a much wider

thing. I am talking about the criminal processes

from the time of arrest through until the

conclusion of sentence. I am talking about now a

wider consideration than confining the concept of

fairness to the individual accused as opposed to

the Crown in the adversary sense and taking
"fairness" to include fair dealing as and between

all the accused and the Crown such as not to

produce a disparity or justifiable sense of

grievance in the upshot or in the way in which an

accused is treated.

TOOHEY J:  You are moving it into the executive process, are

you not? You are really asking the Court in the

exercise of its judicial function to control the

executive function.

MR JAMES:  No, Your Honour, to control a litigant in front of the court. It may be that that has the effect

of controlling an arm of the executive but there is

nothing peculiar about that.

MASON CJ:	I think there is something very peculiar about engaging in judicial review of an executive
decision to present an indictment in a particular
form against an accused.  The courts have
traditionally set their face against engaging in that kind of review.
MR JAMES:	With respect, Your Honour, the courts have

traditionally reviewed the form of indictments the

executive has wished to pursue, and indeed have

developed a calculus of rules and procedures

relating to joinder, pleading, practice and so

forth, all of which guard against the executive

occasioning unfairness to an accused by presenting

indictments and seeking trials in particular forms.

MASON CJ: Yes, but not in relation to charging the accused

with a particular offence.

MR JAMES:  The courts have never declined jurisdiction to

deal with a charge properly brought on which there

is evidence that the executive seeks to put to a

jury. But often enough and continuously as a

matter of procedure, a judge, confronted with a

case which outrages the judicial conscience and

which appears on what is displayed publicly in the

public process of trial to be such as to outrage
the administration of justice, will intimate to a

Crown prosecutor that the matter should not proceed

further.

MASON CJ:  And then the Crown Prosecutor may act on that

intimation.

Mihailovic(2)	28	3/2/94
MR JAMES:	He may.	And it may well be that the Crown

Prosecutor will conclude that the matter should

proceed further, and it does.

MASON CJ: So the executive decision stands. It is a matter

for the executive?

MR JAMES:  In that case, yes, but if, in order to implement

the proceeding further the executive has to bring

itself within the control and discretion of the

court, in our submission, the court is not deprived

of power to control not the executive decision, but

the application of it in the court.

BRENNAN J: Well, the application of the court consists of

the resolution of the issues joined by a plea taken

to the indictment.

MR JAMES: But, Your Honour, we were deprived of that. That

is exactly what - - -

BRENNAN J:  No, you were not. There was a charge of murder;

there was a plea of not guilty. The issues were

joined. Those issues had to be determined.

MR JAMES:	But the manslaughter - that is exactly what the executive sought to deprive him of, to having that
matter determined.

BRENNAN J: That may well be so. It may even be curable now

if there was any difficulty by putting a nolle in

on that indictment. But so far as the indictment

for murder is concerned, it was a valid indictment;
there was a plea taken; there were issues joined,
and the court's function was to see that those

issues were fairly tried. What else is there to

say?

MR JAMES:  Your Honour, we have no problem with what

Your Honour has said except that we say that was

not all the court's function.

BRENNAN J:  You say that the court's function goes beyond

that to deal with what the Chief Justice was

putting to you, namely to review the exercise by

the Crown of its prerogative to present an

indictment charging murder.

MR JAMES:  No, Your Honour, we do not say that it is to

review the Crown prerogative because the court does
not have the material to do that. But what the
court looks at is not the reviewing the correctness

or fairness or what-have-you of that decision, but

to look at the material that is in court to see if

what is occurring in the court is the wreaking of

an unfairness. Now, it may be that the court might

ask for an explanation and that explanation might

Mihailovic(2) 29 3/2/94

be given and perfectly satisfactory. It may be

that the executive declines to give any

explanation. But all the court can proceed on is

not a reviewing of the discretion, but the
ascertainment of whether what is occurring in front

of the court is wreaking an unfairness.

BRENNAN J: Well having done that, what order is made?

MR JAMES:  Well, the court moulds its orders to deal with

that unfairness and at the bottom, as the last

resort, stays the proceedings, as an ultimate last

resort. Now, it may well be that the appropriate

course in this case was to decline to go ahead with the murder prosecution for the time being until the

manslaughter was disposed of. Now that might have

left the accused at risk of a finding against him

of all the elements of murder except intent, and

the Crown might still have been determined to go

ahead and prove that matter relying on the

additional material, notwithstanding that the Crown

prosecutor seemed to be of the view that the Crown
could not so continue. Or it may be that the Crown
could not so continue because of a doctrine related

to the development of the law of homicide, that is,

that the conviction of one homicide, whether it be

of manslaughter or murder, would preclude

indictment for another, but that was occasioned by

virtue of the Crown coming to the court and filing

the indictment for manslaughter and then seeking,

as it were, to get it back to clear the decks to

put on an indictment for a more severe charge, not
because of any act of the accused or any

distinction in culpability or any other matter.

Now, standing back from these proceedings and

looking at them more widely than in the case of the

individual, what apparently happened is that this

individual is by that conviction stigmatized as

more responsible - those convicted of murder are

accord, in our submission, either with the facts or	stigmatized as more responsible - and that does not
with law.

MASON CJ:  Mr James, we have been around all this and I do

not know that you can add much more to it.	It
gives it a more attractive flavour.

MR JAMES:  Your Honour may well be right. I was about to

return, Your Honours, to the summary of argument.

There is little more, Your Honour, that I can say as to paragraphs 1 to 3. Now, what we say is set

out in the outline. We say that His Honour and the

Court of Criminal Appeal fell into error in

thinking that the trial judge could not intervene,

and at paragraph 4, we turn to there having been a

miscarriage of justice.

Mihailovic(2) 30 3/2/94

Now, we point out, Your Honour, that in

Hui Chi-ming the Crown acted consistently

throughout. In the present proceedings, the change

that happened, happened without any notice at a
time at which the matter had been listed for plea
to manslaughter and that, some days before that

plea was due to be taken, the defence were informed

that that plea would no longer be accepted. The

grounds position was then entirely inconsistent

with what had previously occurred.

Your Honours, it is our submission, at

paragraph 6 of the summary, that the ambit of the

doctrine of abuse of process is wider in Australia

than that referred to in Hui Chi-ming and that

applying what had been said in the cases that are

referred to there - and I can take Your Honours to

the passages if necessary - that unequal treatment

can be rectified by the courts.

At paragraph 7 we turn to a different matter.

Your Honours, it was sought in the trial to

cross-examine French and Jong on the actual

offences of which they had been convicted. It was

sought to do that for a number of reasons. That

included the formula that those witnesses had been
dealt with, and it included the ability to bring

out, as it were, their own true situation in regard

to the Crown.

BRENNAN J: What is the special leave point in this,

Mr James?

MR JAMES:  The special leave point in this, Your Honour, is

that cross-examination was rejected and rejected on the basis that it might elicit evidence prejudicial to the Crown. In our submission, it was directly

relevantly relevant and there is no doctrine that

permits the excision of evidence prejudicial to the

Crown which is relevant to the defence. Further,

in the - - -

DAWSON J:	How was it relevant?
MR JAMES:	It was relevant, Your Honour, because the Crown

opened up. They had been convicted of an offence

arising out of the same transaction and that it was

a case of where they were all jointly liable for

the murder. The jury would have got the direct

impression that the two persons giving evidence had

been convicted of murder and notwithstanding the

trial judge's directions to them not to speculate

what offence amongst murder or manslaughter these
witnesses may have committed, there is no reason

why a jury would not have come to the conclusion

that the Crown who was here seeking equal treatment

Mihailovic(2) 31 3/2/94

for all the accused was calling two witnesses who

had been convicted and dealt with for their part.

DAWSON J: But whatever they had been convicted of would

have no relevance at all. It is a question of what

offences the accused before the court had been

guilty of.

MR JAMES:  But, Your Honour, the question of what a witness

may have been guilty of in the very transaction had

been in effect opened up by the Crown.

DAWSON J: Yes, and for the reason that it had to establish

they had been convicted and dealt with. That is a

matter going to their credit but what they had been

dealt with has no relevance at all.

MR JAMES:  Your Honour, if they had been dealt with for

murder, then it was entirely open to the jury, the

Crown having opened that all were equally culpable,

to be swayed by the impermissible but sub

silentio - - -

DAWSON J: Equal culpability or otherwise was to be decided

on the evidence, not on what the Crown had charged

these people with or what they had been convicted

of on a previous occasion.

MR JAMES:	Your Honour, the point I am trying to make is the Crown opened joint liability for a joint enterprise
find of one his culpability in that context, and
that they were all culpable. "Therefore, you would dealt with for an offence in the exercise." All the jury would get out of that is: here are two
people who have been dealt with for murder, equally
guilty - - -

DAWSON J: And therefore have nothing to gain by giving

evidence one way or the other.

MR JAMES:  Nothing to gain, and they are credible Crown

witnesses. There is no suggestion that they are

not persons who have owned up to their full share

of responsibility for this offence. We can put

trust in their account. That was not the case; it

simply was not the case. The jury were left then

with this evidence on a basis that these persons

had a greater credibility than they might otherwise

have had and, what is worse is, the merciful

verdict is not to be mentioned to the jury for the

benefit of the defence. But in this case the

implication of a murder conviction in the

co-accused is there, so that that same mode of

reasoning that might otherwise have permitted a

jury to accede to a merciful verdict of

manslaughter, impermissible though it is, would

Mihailovic(2) 32 3/2/94

also permit the jury in this case to say, "Well,

why shouldn't they all go for murder? If some have

gone and they're all guilty" - - -

BRENNAN J:  If you look at the direction given by the judge

at 541 I must confess I find it difficult to think

of a direction that could be more relevant and more

fair than that in the circumstances. What would

you want him to say? They have only been convicted

of manslaughter, so in the circumstances you will

find it a bit hard to convict these people of

murder?

MR JAMES:  No, Your Honour, but you do not have to go on to

the second portion of it.

BRENNAN J: What he said is - - -

MR JAMES:  It is perfectly permissible to tell the jury the

truth of what they had been convicted without

having to go on and say, "therefore you will

convict these others only of manslaughter".

BRENNAN J:  He says, "They may have been convicted of

murder; they may have been convicted of

manslaughter.	You do not know and you do not have
to worry."

MR JAMES:  Yes, but that means that therefore the

availability of the fact that they have been

convicted of manslaughter was denied to these

accused on the question of their culpability and

whether the jury would accept their evidence.

DAWSON J: As was pointed out in Hui Chi-ming, if the tables

had been reversed and the first trial resulted in a

conviction for murder and others were charged with

manslaughter, the defence would be all out to

prevent the nature of the conviction from being

mentioned.

MR JAMES: Precisely, Your Honour~ That is what we say was

one implication open to the jury here.

DAWSON J: It is just not relevant, Mr James, what they were

convicted of. It does not prove anything in the

trial of the accused. Anyway, the point is a short

one.

MR JAMES:	Yes, and Your Honour we have put the submissions there, including the reference to Booth and Wakely.
As the position currently stands, the Crown elicits
of the witness that the witness has been dealt with for his part, in this case, the offence, and is
charged murder.  He says they are all jointly
liable and that the jury are told, "Don't worry
about whether it is murder or manslaughter."

Mihailovic(2) 33 3/2/94

TOOHEY J:  Mr James, what is the extent of the

cross-examination that you say should have been

permitted, merely to put to the witness, "Were you

convicted of manslaughter?"

MR JAMES:  And was that as a result of an arrangement with

the Crown? Have you told us the full circumstances
of - these witnesses were witnesses expressing

contrition - of what your actual complicity was.

DAWSON J: And then the Crown would be entitled to call

evidence as to why it made the decision it did to

charge these people with murder and the whole court

would be off on a side issue.

MR JAMES:  No, Your Honour, the Crown do not have to do

that, they might wish to.

DAWSON J: They would want to, and they would be entitled

to.

MR JAMES:	They are certainly entitled to, and they might wish to, and that is a forensic issue that can be
disposed of.

DAWSON J: That would be a side issue which would divert the

trial from its true object.

MR JAMES:  Your Honour, with respect, it does not divert the

trial from its true object if the matters that are

relevant to the jury's evaluation of these

witnesses - - -

DAWSON J: But I am saying they are not relevant.

MR JAMES:  I am not talking about relevance to the issue, I

am talking about relevance to evaluation, ie

credibility, are examined. And one of those

matters with every accomplice - - -

DAWSON J:  You wanted to say, look, these people were

convicted of manslaughter in a different trial, so

you disregard the evidence in this trial, fairness

dictates that all that my client should be

convicted of is manslaughter.

MR JAMES: This is not Hui Chi-ming, we are not talking

about a conviction at a trial.

DAWSON J:	But that is the way you were wanting to put it.
MR JAMES:	No, we are talking about the plea, the way in

which the plea in contrition arose.

BRENNAN J:  Mr James, really, you are asking us to accept too much there, surely.

Mihailovic(2) 34 3/2/94

MR JAMES:	If Your Honours say so, but could I say this, that indemnified witnesses, accomplices, persons
whose full culpability in various crimes are
regularly every day giving evidence and are doing
so on the basis, one would hope, of the true facts
rather than an artificial situation such as might
found sentencing in De Simoni terms. In our
submission the jury is entitled to know the truth of that situation and entitled to evaluate the witness on the basis of the plea that he has made
and the agreement he has reached with the Crown, and that unless one is entitled to get from the
witness what offence he has pleaded guilty to, how
can the jury do that?  I cannot say any more on
that matter.

The last matter to which I would turn is

sentence. I have expressed to the Court submissions
in relation to that. In our submission, it is not

the end of the matter for disparity and culpability

that the Crown have chosen to plead a different

crime against one accused than another, that the

sentencing process the Court embarks upon, whilst

it may be artificial in relation to one accused,

may have to be artificial in relation to others to

preserve consistency and to avoid an overall

unfairness. Now that means that it is not only a

matter to have regard to the difference in crime,
but there still must be some evaluation and some
evaluation that looks at bottom, in the case of the

individual, to the comparable culpability.

If a co-accused does a good deal and is able,

as a result of that to get a great result for the

Crown which does not reflect his culpability nor

the facts, there will no doubt be a limit on the

applicability of such disparity, as there is where

two accused are charged with the same crime, but

come to trial before different judges. But that

does not mean that one puts it away entirely and,

in our submission, there is still a special leave

point here in sentence, because of the confining of

Lowe that has occurred, only to the circumstance

where the Crown has exercised its discretion to

seek to charge differently persons against whom the

facts and culpability are otherwise the same.

Unless I can assist the Court further, they are the submissions that we put on this

application.

MASON CJ: Yes, thank you, Mr James. Mr Lord.

MR LORD:  We adopt, if Your Honours please, the submissions

of my learned friend,.Mr James, in relation to

paragraphs 4 to 9 in his summary of argument.	The
matters in paragraphs 1, 2 and 3, Your Honours,

Mihailovic(2) 35 3/2/94

relating to the indictment, do not apply in any

sense to Mihailovic for this reason: Mihailovic was never indicted and never arraigned on an indictment

for manslaughter. A number of the others were,

one, Lopez, as Your Honours know, pleaded guilty

under the summary committal for sentence

procedures; others were arraigned and indicted and

all but one pleaded guilty, but that opportunity

was never given to Mihailovic.

MR LORD:  At no time between between committal and trial was

he given an opportunity to be indicted and

arraigned on the committal charge. Our short

submission is, if Your Honours please, that that

deprivation, if I may use that word, resulted when

one looks at him in the light of the others, that

deprivation occasions to him what His Honour the

trial judge described as a monsterous unfairness.

There is no basis, Your Honours, for that distinction. One short answer, of course, may be

put that his solicitors never endeavoured to have
him brought before a court and indicted for

manslaughter. But, of course, Your Honours, in the

procedures which were followed until December, not
long before the trial commenced, so far as he was
aware he faced only the committal charge of

manslaughter.

Our short point is that not having been given

that opportunity before trial he should have at

least been given the opportunity at trial, and that

opportunity at trial could have been properly given

him by His Honour the trial judge staying

proceedings on the indictment for murder as being,

in his case at least, an abuse of process because

it is our submission, Your Honours, that one must

look at what happened between Crown and

co-offenders. One must look at the totality of it

in order to determine that there was an unfairness

shown to Mihailovic and the degree of that

unfairness.

TOOHEY J:  Mr Lord, is it right that your client knew in

December 1990 that he was to be indicted for

murder?

MR LORD:  By letter dated 10 December 1990, yes,

Your Honour.

TOOHEY J: And the trial took place when?

MR LORD:  The trial commenced, Your Honour, on 29 January.

Your Honours will notice of course that letter

dated 10 December was not very long before the end

of term and 29 January was the first day of term.

I think this was mentioned during the hearing in

Mihailovic(2) 36 3/2/94

Sydney - in fact I am sure it was - that there were

communications at least between myself and the

Crown late in January when I first came into the matter, somewhere about 20 January.

TOOHEY J: But I am not clear. Are you suggesting that, in

the case of your client, the position in this area

of discourse, the one we are speaking of at the

moment, that his position somehow is stronger than

that of Morgan?

MR LORD:  Yes, Your Honour.

TOOHEY J: What is it that helps that submission?

MR LORD:  Because Morgan had the opportunity to plead guilty

to an indictment for manslaughter but chose to

plead not guilty. Mihailovic never had that

opportunity.

TOOHEY J: Yes, I understand.

MR LORD:  That is the short point, Your Honour. Not having

been given the opportunity, he was never told by

the Crown that until December the case against him was manslaughter only and that the Crown would, of

necessity, be prepared to deal with the matter on a

plea of guilty to the committal charge which was
the indictment charge. His solicitors were sent a
draft indictment, some time I think in June or July
of 1990, which alleged manslaughter and no other

offence. And that is really the short point which

distinguishes him from Morgan and, in our

submission, Your Honours, that distinction, that

difference, puts him in a different and

significantly stronger position than Morgan.

There is one further matter to which I might

refer, if Your Honours please. In the Crown's

chronology which has been adopted by us, on page 2

the entry for 27 July 1990 reads: 

Mention before Wood J with Mihailovic (?)

apparently appearing in person.

The note of the appearance on that date,

Your Honour, is to be found at page 28 of the

application book; it is the second date from the

bottom of the page, Your Honours, 27/7/90, and it

reads, Your Honours, as far as one can distinguish

it, "Manuel - in Person". What that means, one can

only speculate about. Manual was the first name of

John.

DAWSON J: Nothing turns on this, does it?

Mihailovic(2) 37 3/2/94

MR LORD:  It is just, Your.Honour, that it does remove any

suggestion that Mihailovic had appeared before

Mr Justice Wood on that day, because the chronology

shows that there was no appearance by or for

Mihailovic at any of the listings as set out in the

chronology. In other words, he was completely

unaware of what was going on in relation to the

Crown's attitude, and certainly what co-offenders,

co-accused as they were at that stage, what steps

they might or might not have been taking. That,

Your Honours, unless there is some matter which I

may be of some assistance is, in the very short

form, the point we make in addition to the matters
put to Your Honours by my learned friend, Mr James.

Perhaps I might, for a moment, say in relation to the cross-examination of F and J, the procedure

which which was adopted resulted in a strong

possibility that the jury would say that they too

had pleaded guilty to murder, which was not the

fact and we say they should not have been put in a

position where they could come to a conclusion

which did not accord with the fact.	If the Court
please.

MASON CJ: Yes, thank you, Mr Lord. The Court will take a

short adjournment to consider the course it will

take in these matters.

AT 4.21 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.23 PM:

MASON CJ:  The Court need not trouble you, Mr Solicitor.

The Court is not persuaded that there was any

error on the part of the Court of Criminal Appeal

in arriving at its decisions in these matters.	The
applications for special leave to appeal are
therefore refused.

AT 4.24 PM THE MATTER WAS ADJOURNED SINE DIE

Mihailovic(2) 38 3/2/94