Minogue v The QUeen

[1992] HCATrans 338

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M41 of 1989

B e t w e e n -

CRAIG WILLIAM JOHN MINOGUE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 1992, AT 3.40 PM

Copyright in the High Court of Australia

Minogue 1 13/11/92

MR A.R. CASTAN, QC: If the Court please, I appear with my

learned friend, MR N.J. CLELLAND, for the

applicant. (instructed by Judge & Papaleo)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

my learned friend, MS K.E. JUDD, for the Crown.

(instructed by the Director of Public Prosecutions.

MASON CJ:  Mr Castan.

MR CASTAN: If the Court please. This matter is an

application for special leave that was dealt with

by this Court on 6 June 1991.

MASON CJ: Yes. We are familiar with the history.

MR CASTAN:  The matter can be put very shortly,

Your Honours. Could I take Your Honours to page 5

of a document that was exhibited to an affidavit

that was filed last night or this morning but, in

any event, made available to the Court which is the

document which unfortunately was omitted from the

application book which was filed in accordance with

the directions of the Court of Criminal Appeal,

that argument on the further ground should be put

in writing before that court. If Your Honours have

access to that document, there is a passage on

page 5 that I would seek to take Your Honours to.

It is paragraph 7. After setting out certain

matters of what might be called the traditional

unsafe and unsatisfactory ground, prior to

paragraph 7, it is then said:

In addition to the above, it is respectfully

submitted that this Court is entitled to

consider the combined effect of the other

grounds raised in the Applicant's Notice of

Appeal in assessing whether his conviction was

unsafe and unsatisfactory even though

individually those impugned grounds were held

not to have resulted in a miscarriage of

justice.

The Court of Criminal Appeal in dismissing a

number of the other Grounds contended for by

the Applicant did not conclude necessarily

that the Ground was not made out but rather

that no miscarriage of justice had occurred or

the matter was not of sufficient weight.

In these circumstances it is necessary to
examine the totality of these grounds of

Appeal and the significance of each of them,

viewed as a whole. The examination of the

totality of the Grounds of Appeal which were

rejected by the Court of Criminal Appeal

Minogue 2 13/11/92

reveals a combination of matters, each of which individually was regarded as not in

itself significant enough to warrant allowing

the Appeal but which, when viewed as a whole,

and in their combined effect, lead to the

conclusion that the verdict is properly to be

characterised as "unsafe and unsatisfactory".

And then the next four or five pages are a summary of the particular matters in what I will call the

first judgment of the Court of Criminal Appeal as

to which it is said, "Although individually dealt

with, disposed of and rejected, were matters which
went to something in the nature of a possible

prejudice or a possible element that might have

given rise to a discharge", and I will come back to

those briefly shortly, but the submission was thus

made.

Can I then take Your Honours to page 165 of

the application book, which is page 7 of the second
judgment of the Court of Criminal Appeal. I take

Your Honours to page 165 because that is the only

reference to those matters which appear and which

are submitted in writing following that which I

have just read to Your Honours. It is said at

line 8, after dealing with various earlier matters:

Other grounds of appeal alleged that there was

unfairness or prejudice associated with

certain features of the trial. None of these

grounds were made out to the Court's

satisfaction. The written argument proffered

in support of the present application seeks to

re-open the matters which were held to be

groundless for the purpose of contending that

collectively these matters show the verdicts

were unsafe or unsatisfactory.

In oral argument, however, it became

clear that the real complaint was that the
direct evidence of the Hetzels and Zelinka
against the applicant had been supported by

statements derived from other accused ..... This

amounts to an argument that a separate trial

of the applicant should have been ordered.

This was one of the grounds of appeal which

was fully argued and rejected.

The position is that the direct

evidence -

was accepted.

The question is whether a verdict based upon

such evidence can be characterised as unsafe

or unsatisfactory. To reach this conclusion

Minogue	13/11/92 the Court must find the evidence to be wanting
in sufficiency or quality.

And the judgment goes on then to deal with that

question: whether or not the evidence was wanting

in sufficiency or quality.

What one searches for vain, in our respectful

submission, is any dealing with that which is

submitted at paragraph 7 of the written submissions

and in the five pages of summaried argument there

following. One simply does not find Their Honours

dealing with it.

McHUGH J: But does not line 17 on page 165 indicate why

that is so, that on the oral argument it emerged
that the real complaint was about the direct

evidence of the Hetzels and Zelinka?

MR CASTAN: With great respect, no, Your Honour. With great

respect, that is not a way in which that which has

been submitted in writing and the oral argument was

based on material which is also in the application

book, being some notes of the oral argument which

were mistakenly provided instead of the actual

written submissions. But the reality is that it is

not, in our respectful submission, an appropriate

way - and I might say this is the second time

around where the same thing has happened in

substance, where the attempt to obtain a review of

the overall prejudice, if that is the right word,

or the overall inadequacy or the overall

unsatisfactory nature of the trial as a whole, has

failed in the sense that the court has simply not

come to look at it. What was being sought, apart

from what I will call conventional Chidiac unsafe

and unsatisfactory, what was being sought, what was

being submitted, what was put explicitly, and what

was certainly not abandoned, having been down that

route and that argument two years ago and being

told that we had abandoned something, nothing was

abandoned here. What was being put was that there

is, in addition to what might be called the

conventional necessity to examine evidence in

detail, a situation where there were unsatisfactory

features of the case when looked at as a whole.

Now, can I take Your Honours briefly to what

some of those things are to give a conspectus of the kind of issues they are in a case like this,

keeping in mind this was a case of some

considerable notoriety and - - -

BRENNAN J:  Mr Castan, if we were to grant you special leave

in this case to argue the points that were in

paragraph 7 of these notes, what we would be doing

would be to say that despite the fact that the

Minogue 4 13/11/92

Court of Criminal Appeal says that the way in which

the oral argument was presented was as appears at

page 165, none the less, twice they have failed to

address the question that they were asked to

determine.	We are asked to do that on what
material?	On counsel's say-so?

MR CASTAN:	On the material that is before the Court.
BRENNAN J:	We do not have the oral argument.
MR CASTAN:	Your Honours do have the notes of oral argument though not a transcript of anything that goes
specifically to what is suggested is some kind of
concession or yielding in relation to that matter.

BRENNAN J: It may not be that. It may be that when the

argument started to be developed in accordance with

paragraph 7, it fell away and was left with no

what was the real substance of it. Having regard

substance except that which depended upon the

to the issues that were raised, and I am thinking

particularly of those that were identified as -

some of them I would have thought were

insubstantial in the extreme - but having regard to

what I think are ten special points that were

raised, the court might have said, "Well, it really

didn't come to anything except this Hetzel and

Zelinka argument."

MR CASTAN:  Your Honour, take one - - -

BRENNAN J: If your argument is right, what we should be

doing is saying, "Back to the Court of Criminal

Appeal once more.	Now, please do what you have
been asked to do."

MR CASTAN:  We have tried twice, Your Honour, putting it

quite bluntly, and we still have not had the

matters that are sought to be put dealt with; even

dealt with negatively; even dealt with in a way

that says, "No, we see the way you've argued that

and we reject it."	We have not even had it
properly rejected.	We have not had a court yet

review the elements that go to - let me just give

one example by way of an illustration that was one

of the components that ultimately was held of

itself not to amount to sufficient prejudice. A

witness - evidence was opened in the opening by the

Crown that a particular witness would give what was

opened as evidence which implicated the accused -

very adverse evidence. As it transpired, that

witness could not be called.

We do not challenge here now of itself the

ultimate decision that the jury should have been

Minogue 13/11/92

discharged at the time when it was revealed that
notwithstanding that a witness had been opened who

would give adverse evidence, she could not be

called for extraneous reasons. That can happen,

and if that was all that happened, and only that,

well, so be it. If that happened and, in addition,

there was a number of incidents where statements of

witnesses were not provided to counsel for the

applicant, and that was criticized by the trial

judge and criticized by the Court of Criminal

Appeal in dealing with that separate ground, but

ultimately said not to have itself caused such

prejudice as to justify another trial; if there was

a failure to call witnesses but it was said

ultimately that was not such as to justify a new

trial; if evidence of motive, which is a matter for

discretion, which it was ultimately said, "Well,

yes, it might be prejudice in relation to that

evidence of motive but the judge didn't go wrong in

his evaluation of that as to whether that of itself

caused such prejudice as to require a discharge",

and one may say, "Yes, of itself, it doesn't"; if

there was evidence given by a witness who recounted

in turn hearsay evidence of an implication of one

accused and an exculpation of this applicant and

comment was made about that evidence but no comment

was made about the fact that it included an exculpation of this accused in His Honour's

address, of itself one can see, well, that comment

about some evidence given by someone else about

excusing this accused, might not give rise. Each

of these matters, one can say, of themselves - one says, "Well, yes, correctly, the Court of Criminal Appeal, when they dealt with it, or the judge at

the time when he dealt with it, decided it didn't

amount to sufficient prejudice."

But the question is whether, when one looks at

a trial - and there is another one to do with a

trial, a public statement made to the media by the	statement made in the course of the running of the
Chief Commissioner of Police, and ultimately was
held that was not sufficient, given the timing of
it and given the length of the trial; the fact that
the Chief Commissioner of Police made a comment
about the horrible effects of the Russell Street bombing was not sufficiently prejudicial to the
trial. One can understand and accept of itself it
was not.

But in a trial of considerable notoriety

experience suggests that the Court should, in our

respectful submission, be very careful when asked

to look at the totality of these matters which

independently of the traditional unsafe and

unsatisfactory analysis which involves analysing

evidence, because they may be matters extraneous

Minogue 6 13/11/92

such as the Police Commissioner's statement or the

opening that was given about a witness who was not

called, if one has a series of these matters, each

of which perhaps might amount to sufficient

prejudice but then it is held does not, the

question is whether there is such a thing as

prejudice that amounts to prejudice by, so to

speak, a drip effect where each drip, perhaps, does

not amount to sufficient prejudice - - -

MASON CJ: There really is no question of that, Mr Castan.

There is no shadow of doubt that you can look at

matters in their totality with a view to

determining whether their cumulative effect is to

produce an unsafe and unsatisfactory verdict, and

the Court of Criminal Appeal acknowledged that.

But the difficulty is that an argument was

presented to the Court of Criminal Appeal in

support of that contention and the Court of

Criminal Appeal took it that the argument came down

to one matter in substance and one can understand

it, having regard to the particular matters of

complaint that are put forward. The matter dealt

with by the Court of Criminal Appeal seems to have

been the most serious of the matters involved, and

one can understand that the argument might have

come down to that.

MR CASTAN:  Your Honour, all one can say is that it is

nothing less than highly unsatisfactory that the

position that is reached is that ultimately that

which was being put at the direction of the court

in writing and then supplemented by oral

submissions supported by notes of argument that go

into the whole of the detail of it, is then not dealt with and on matters which are notoriously

important in trials where there is an associated

considerable publicity and public unease about a

particular event. They are the very sorts of

trials where, of course, the courts should be most

alert to ensure that it does not occur, precisely

this kind of event.

Now, the fact is, as we would respectfully

submit, no court has yet undertaken that overview

of the combination of prejudicial effects that we

have adverted to.

BRENNAN J:  Mr Castan, with great respect to the submission,

it seems to me to do less than justice to what the

Court of Criminal Appeal has said. In the passage

on page 165 just before the paragraph to which you

have been adverting, the court said:

re-open the matters which were held to be

groundless for the purpose of contending that

Minogue 7 13/11/92

collectively these matters show the verdicts

were unsafe or unsatisfactory.

Now, that was the argument. The court appreciated

that that was the argument and, in response to the

argument, goes on to say:

In oral argument, however, it became

clear -

in other words, amongst the chaff they found some

grains of wheat and that is what they go on to

consider.

MR CASTAN: That was not the argument though, even as stated

by themselves, Your Honour. It was not that one

has to separate the chaff from the wheat, it was

that one has to see whether the drips, when

combined, amount to a bucket of prejudice. That is

the argument. It is simply not the kind of

argument that was put - - -

BRENNAN J:  Take the question of one of the drips, the

joint trial. Now, that was something which might

be said to have some effect because of the

inculpatory statements - - -

MR CASTAN:	Yes.
BRENNAN J:	Now, that is a familiarity that everybody does

not need to spend any time on, the problems of

joint trials, the suspect witnesses and the

accomplices. Now, in a sense, that comes together

with the problems they did address: voice

identification in the light of the summing up made

by the trial judge; failure to call Karen Davies to

corroborate the other witness, Karen Davies being

ill.

MR CASTAN: Karen Davies having been opened as having

given - - -

MASON CJ: Yes, you made that clear.

BRENNAN J:	I appreciate that.
MR CASTAN:	- - - adverse evidence.
BRENNAN J:	We can go through them all and it may well be

that this Court would come very much to the same

conclusion as the Court of Criminal Appeal. I do not say that it would, but it just seems to me to

be drawing a very long bow to put your argument

substantially on the basis that what you wish to

put to the Court of Criminal Appeal was not

considered.

Minogue 8 13/11/92

MR CASTAN: In our respectful submission, if it was

considered, it was considered in an erroneous way
then. It was considered upon the basis that in

dealing with unsafe and unsatisfactory, really,

there only exists what might be termed the

traditional Chidiac kind of ground that requires

the analysis of the evidence for the purpose of

deciding whether one could leave it to the jury.

Perhaps I should take Your Honours briefly to

what the Court of Criminal Appeal in New South

Wales did in the case of Anderson in 1991.

MASON CJ: But what is the point of taking us to that?

MR CASTAN:  One sees an example - it is only an example,

Your Honour, where, after a detailed analysis, the

Court of Criminal Appeal comes to the view that, on

balance, it cannot be said that it was unsafe and

unsatisfactory on the analysis of the evidence, but

then looks at the combination of that with other

features that may not bear on evidence. They may

be of an extraneous nature or they may be

occurrences in the trial which include things like

failure to give statements, may be - -

MASON CJ: Yes, but what is the point of taking us to

Anderson?

MR CASTAN:  I mention it to illustrate that there what

happened was that an analysis of the evidence on an

unsafe and unsatisfactory basis led to the

conclusion that the matter could go to the jury.

But, nevertheless, then, when taking into account

other aspects of the way in which the trial had

been conducted, it was concluded that the trial had

miscarried because of the other extraneous matters

when combined with the evidentiary elements.

Now, what the Court of Criminal Appeal has

done here, in our respectful submission, is, so to

speak, assuming it is performing the task of

dealing with what is there set out on page 165 as

the submission, is to fall back into the

Chidiac-type analysis, that is to say, to analyse evidence and see whether it is safe to go to the

jury.	One does not find any mention of these other
matters that are the subject of submission.	And

even conceding that they were concerned, of course,

to concentrate on what they might have thought

where the major issues, the wheat from the chaff,

one would have expected to find that given that

there were eight or ten or however many matters,

that they themselves had dealt with and had held
were unsatisfactory aspects of the trial but which

nevertheless did not amount to sufficient

prejudice, that they might have gone and looked at

Minogue 9 13/11/92

those and said, "Well, now, failure to give

statements was unsatisfactory and we ourselves said

so" -

MASON CJ:	One can understand that, yes.
MR CASTAN:	One would expect to find that the purpose of applying that second-level test, the sort of test
that Sir Garfield Barwick expounds in Ireland,
which I think is set out in the affidavit, that a
combination of matters may amount to sufficient to
indicate miscarriage.  One does not find that
analysis in this judgment, in our respectful
submission. Or, if this is the analysis, it is an analysis which is flawed because what it has done
is fall back into doing the traditional task of
analysing the evidence for the purpose of a
Chidiac-type process.  Now, that is the way we put
it.

I do not know that we can really - it is a

single point. It is, in our respectful submission,
a significant defect. It has gone wrong, in our
respectful submission. Alternatively, if the court

is to be treated as having dealt with the ground at

all, then it has dealt with it wrongly, in our

respectful submission, because it has failed to

come to grips with this concept, if I can put it broadly, of the drip concept; the concept that a

number of defects may amount to a miscarriage that

Sir Garfield Barwick referred to.

They have simply gone about that task, if that

was the task they were undertaking, erroneously.	I
do not know that repeating it will make it any
better, Your Honours, it is very clear.

MASON CJ:  No, it will not. Thank you, Mr Castan. The

Court will take a short adjournment in order to

consider the course it will follow in this matter.

AT 4.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.12 PM:

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

MR BONGIORNO: If the Court pleases.

MASON CJ:  In this case the Court of Criminal Appeal

rejected the applicant's contention that his

Minogue 10 13/11/92

convictions were unsafe and unsatisfactory after

considering 10 individual matters of complaint each
of which, on the applicant's case, justified the
conclusion that one or more of the convictions were

unsafe or unsatisfactory.

Counsel for the applicant submits that the

Court of Criminal Appeal did not appreciate the

argument that the 10 points collectively led to	the
conclusion that the verdict was unsafe or

unsatisfactory. We are not satisfied that that

submission can be supported, having regard	to what
was said by the Court of Criminal Appeal.	The
court said:

"The written argument proffered in support of

the present application seeks to re-open the matters which were held to be groundless for the purpose of contending that collectively

these matters show the verdicts were unsafe or

unsatisfactory".

The Court of Criminal Appeal continued:

"In oral argument, however, it became

clear that the real complaint was that the

direct evidence of the Hetzels and Zelinka

against the applicant had been supported by

statements derived from other accused which

were inadmissible against the applicant. This

amounts to an argument that a separate trial

of the applicant should have been ordered."

In the result, the motion is refused.

MR CASTAN: If the Court pleases.

AT 4.13 PM THE MATTER WAS ADJOURNED SINE DIE

Minogue 11 13/11/92