Mill v The Queen

[2007] HCATrans 696

[2007] HCATrans 696

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B31 of 2007

B e t w e e n -

DARREN LINDSAY MILL

Applicant

and

THE QUEEN

Respondent

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 16 NOVEMBER 2007, AT 1.48 PM

Copyright in the High Court of Australia

MR R.J. CLUTTERBUCK:   I appear for the applicant.  (instructed by Mylne Lawyers)

MR B.G. CAMPBELL:   I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

GUMMOW J:   Yes, Mr Clutterbuck.

MR CLUTTERBUCK:   Your Honours, there is one matter that I can shortly deal with and that relates to an application that was to amend the grounds of appeal.  I can tell your Honours that that will be abandoned.  It relates to disclosure of documentation, that is, statements that have been referred to, as your Honours will see.  It arises out of a comment that was made – and I will take your Honours to that in a few moments, if I may – that certain statements have been provided ‑ ‑ ‑

GUMMOW J:   I am looking at the draft notice of appeal at page 214.  Is that what we should be looking at?

MR CLUTTERBUCK:   Yes, your Honour.

HEYDON J:   What is the amendment?

MR CLUTTERBUCK:   If I can take you to page 213, it was referred in the amended application for leave to appeal.

HEYDON J:   Yes.  You are talking about ground 2(c), are you?

MR CLUTTERBUCK:   Yes, I am, your Honour.

HEYDON J:   You are abandoning that ground?

MR CLUTTERBUCK:   Yes, that is correct, your Honour.

HEYDON J:   Yes, all right.

MR CLUTTERBUCK:   I can tell you the reason, that the statements actually have been supplied and it is just the fact that the applicant was not made aware of who the statements were made by, for the record.  Your Honours, the point that the applicant seeks to raise here is whether his Honour Justice Keane in the Court of Appeal below construed the statement, that is, the important statement and it is set out at application record ‑ ‑ ‑

HEYDON J:   Page 191?

MR CLUTTERBUCK:   Page 191, thank you, your Honour, yes - ought to have been construed the way his Honour did, particularly bearing in mind the fact that the applicant was unrepresented at the relevant time and that upon analysis of that statement, does that statement accord with what could materially have occurred?  I submit this, that a report, as your Honours would have read in the material, was presented to the Crown and that report set out what was arguably a defence that could have been relied upon by the applicant.  That defence related to what were count 1 and, more particularly, count 3. 

Count 1 has been dealt with and, for another reason, the applicant was successful on his appeal in the Court of Appeal.  When that statement was construed by his Honour Justice Keane of the Court of Appeal his Honour was of the view that that statement did not impact upon the decision of the applicant to either call or give evidence or even reserve the right of last reply.  As your Honours will see at paragraph [31], the evidence that was relied upon primarily by the applicant was that he lost, as it were, according to what he says or:

he intended to give evidence himself, and to call Mr McKinnon, to have the right of last address, but that, because of the remarks of the Crown Prosecutor set out above and the learned trial judge’s response, he “did not press those matters”.

Now, if one looks at the statement that was made, your Honours, factually or perhaps even legally, the statement could not be correct and I say it for this reason, that particularly in the third line, the prosecutor said:

That evidence has not been adduced in the prosecution case in-chief because the defence report is not before the court, so the evidence would be relevant to rebuttal, potentially.

Now, as I understand authorities, particularly Chan and others, that there is a requirement to place all relevant evidence before the Court and certainly there is requirement to disclose information that ought to be disclosed in the prosecution case certainly to the applicant.  That point has actually been abandoned because we have since found out that those statements had been disclosed, we found that out yesterday, but the fact is that this materially operated upon the mind of the applicant who is, as I said before, again unrepresented. 

This can be gleaned, your Honours, from looking further over the page at page 193 at about point 30 on that page and the comments that the applicant has himself made as to the dilemma he was facing.  Your Honours will see that in heavy type there where the applicant said that he needed to get in contact with him, who was a potential witness he was going to call, and he needed to assess the implications of calling a defence.  That is, of course, following on from the making of this statement by the prosecutor and, of course, the imprimatur afforded to that by the learned trial judge.  Further over the page at page 194 at about line 21 there is a reference to a statement being made:

I need to assess whether I have to call a defence in order to answer those allegations and introduce the omitted documents that I’m referring to.

HEYDON J:   Mr Clutterbuck, can I just interrupt.  I hope this is not taking you too far out of your course.  The Court of Appeal did not find in your client’s evidence before it any assertion about a belief in whether or not the report would tend to establish further criminality.  On page 198, about line 15 onwards:

This assertion is the closest the appellant comes to an assertion that the appellant actually believed that the first Vincents’ report itself revealed further criminal acts by him.  This assertion is distinctly less than compelling.  Not surprisingly, the appellant refrained from a frank statement that he truly believed that the first Vincents’ report itself revealed any acts of criminality on his part.

Those findings are credit based, are they not, in the sense that the Court of Appeal observed your client give evidence and be cross-examined on that evidence?

MR CLUTTERBUCK:   Yes, your Honour.

HEYDON J:   Is that not a barrier to success if leave were to be granted?  Even if you are right about the construction point, is that not a barrier to success?

MR CLUTTERBUCK:   Yes, your Honour.  It does present a barrier.  I was mindful of the fact that the construction point was my primary point and my only point really, except that whilst his Honour did say that, I think his Honour did not under the circumstances in that particular paragraph refer to the evidence that had been given rather than the absence of any documentation, that is, in the affidavit material that specifically pointed to that assertion being made.  As I recall on the appeal, that did take place during the course of submissions prior to the evidence actually having been called. 

That was why the construction point is the point that I raise, your Honour, as the important point here.  My recollection is at the time that particular remark was made and that his Honour was referring to that

evidence had not been called.  So what his Honour had was an affidavit that is referred to in paragraph [31] at page 191 before him at that time.  It is correct to say that was the only evidence that was available to the court at that point in time.  As I recall, the cross‑examination was still the only evidence of the impact of that statement upon the mind of the applicant.  Apart from that, your Honour, they are ‑ ‑ ‑

GUMMOW J:   It makes it difficult though at this level, does it not, to get us involved, having regard to the course of events in the Court of Appeal?

MR CLUTTERBUCK:   Yes, your Honour.  I can only go on the interpretation of that particular paragraph.  That was the material that was presented.  They are my submissions.  Thank you, your Honours.

GUMMOW J:   Thank you, Mr Clutterbuck. 

We do not need to call on you, Mr Campbell.  The applicant contends that at trial in the District Court of Queensland he lost a chance of acquittal on fraud charges.  He contends that at a time when he was appearing for himself counsel for the prosecution incorrectly represented and the trial judge agreed that it was imprudent to continue cross-examining a police officer about a forensic accountant’s report presented by the defence because it revealed other crimes by the applicant.  This, so it was said, led him not to give evidence and not to call the accountant. 

In the Queensland Court of Appeal, the leading judgment was given by Justice Keane.  After observing the applicant being cross-examined before the Court of Appeal, Justice Keane found that counsel for the prosecution did not make the representation alleged, that the applicant did not assert that he believed the matter allegedly represented, that the applicant’s decision not to give evidence or call the accountant was made in order to give the applicant the advantage of a sole address to the jury and that the accountant’s evidence, which was of questionable admissibility, depended on acceptance of the applicant’s version of events of which he chose not to give evidence.

No ground has been shown to us to indicate why this Court could reverse those findings.  Accordingly, an appeal would have no prospects of success and the application is refused. 

Court will adjourn to Tuesday, 4 December 2007 in Canberra at 10.15 am.

AT 2.00 PM THE MATTER WAS CONCLUDED