Moseley v The Queen

[2013] HCATrans 237

[2013] HCATrans 237

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D1 of 2013

B e t w e e n -

NEIL MOSELEY

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 11 OCTOBER 2013, AT 9.34 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR E.P. AUGHTERSON, for the applicant.  (instructed by Ward Keller Lawyers)

MR M.P. GRANT, QC, Solicitor-General for the Northern Territory:   May it please the Court, I appear with my learned friend, MR C.A. SMYTH, for the respondent.  (instructed by Solicitor for the Northern Territory)

FRENCH CJ:   We might be assisted by hearing first from the Solicitor‑General as to why special leave should not be granted.

MR GRANT:   Your Honours, what we concede in the first two paragraphs of our summary of argument is that it might be said that this case is one which carries some public importance in that it is a novel situation, we do not have any authoritative determination ‑ ‑ ‑

CRENNAN J:   You have not found any case where a rescission of a perfected judgment has been ordered in favour of a State party?

MR GRANT:   No, not in the context of a criminal appeal.  Certainly, there have been judicial review applications where criminal decisions in the lower courts have been impugned on that sort of process, but not in this particular case.  Your Honours, we should not be mistaken in our concession.  It extends only to the matters which are raised at paragraph 2.1 of the draft notice of appeal, not to those matters at 2.2 to 2.5 of the draft notice of appeal dealing with whether, in the event that the Court does in fact have jurisdiction, the matter is appropriately dealt with.

CRENNAN J:   The retrial was ordered on 7 June 2012, and here we are having a debate about special leave in relation to an interlocutory application.

MR GRANT:   Yes.

CRENNAN J:   It is rather difficult to appreciate why a retrial would not be an appropriate course of action.

MR GRANT:   Your Honour, simply because the fraud would be perfected and effectuated, we say, if there was a retrial because by reason of its occurrence, assuming there was a fraud as we had been for the purpose of this proceeding that, in itself, gives occasion for reasonable doubt.  Which is why, your Honours, when these matters are being considered in other contexts the question of whether a decision should be rescinded on the basis of fraud, the courts have taken the view that the fraud is tried alone so that ‑ ‑ ‑

CRENNAN J:   Well, that is right but the remedy often in the equitable jurisdiction was to order a retrial, in any event.  I am talking about the civil context, not the criminal context.

MR GRANT:   In our submission, your Honours, as frequently if not more frequently, the remedy was rescission. 

CRENNAN J:   Most frequently, probably remedy in personam with common injunctions which, of course, have all gone after the Judicature Act. 

MR GRANT:   Prior to Judicature – yes, we accept that, your Honour. 

CRENNAN J:   Does the witness’s immunity in relation to giving evidence in judicial proceedings complicate this matter in the sense that perjury or conspiracy would normally be a matter for the criminal law rather than the civil law?

MR GRANT:   It would be, your Honour, and that is a different issue.  One does not confound the other, in our submission, though.  It would be open to the authorities if they thought it appropriate to bring proceeding for perjury but equally, in our submission, it is open to the Court to protect its own processes in separate proceedings to rescind the decision that has been obtained by fraud. 

CRENNAN J:   Anyway, your present position is, is it, that you wish to proceed with these collateral proceedings rather than proceed with a retrial?

MR GRANT:   That is correct, your Honour.  They are my instructions from the Director.

FRENCH CJ:   Is that everything, Mr Solicitor?

MR GRANT:   Your Honours, if the Court is minded to grant special leave that is not something against which the Director will cavil, but if the Court is in two minds about the issues there are some matters we want to put concerning the novelty or otherwise of the propositions.

FRENCH CJ:   We usually do not come here in one mind.

MR GRANT:   Yes, I understand that, your Honour.  There are five points we say that support the proposition that what the Full Court has found below does not involve anything particularly novel in terms of principle.  If I could just detail those briefly.  The first is that fraud is always and has always been acknowledged as an exception to the principle of finality and your Honours find statements to that effect from this Court in Gamser and Burrell v The Queen which both appear in the book of materials but also in DJL v The Central Authority.

CRENNAN J:   Well, it is certainly true in the civil context.  Gamser made that point – it is authority for that point.

MR GRANT:   Yes.  There is no reason in principle why the position would be different, your Honours.  Of course, after Judicature both the civil and the legal and equitable jurisdictions were consolidated into one court, the High Court of Justice, and there is no reason ‑ ‑ ‑

CRENNAN J:   One of the concerns with the old chancery jurisdiction was a lack of confidence, if you like, in the ability in the context of common law courts to have an appeal.  Now, once you have the appeals provided for in 1907, you are contending, are you, that this old jurisdiction survives the ability to have an appeal in criminal context?

MR GRANT:   It certainly does and of course ‑ ‑ ‑

CRENNAN J:   Why should that be so?

MR GRANT:   Because it still has a role to play, your Honour, particularly in these sorts of circumstances where there is no alternative.  The reality is that no appeal could be brought to this Court on the basis of the fresh evidence of the fraud and, bar this sort of proceeding, it is not open to the Court of Criminal Appeal as a statutory creature to reopen its proceedings.  So the only alternative to effectively a new Bill or this sort of procedure is to leave the fraud, if that be what it was, on the record.

FRENCH CJ:   Anyway, you do not argue that the question about the existence or non‑existence of the jurisdiction is not a question worthy of the grant of special leave, what do you want to say about these other grounds?

MR GRANT:   Well, your Honour, simply that retrial is not an appropriate forum for the reason I have already indicated, that a finding of fraud can only be properly be made and expunged on consideration of evidence directed particularly to that issue, not conflated with other issues that might arise in a retrial going to the question of guilt or innocence in the substantive matter.

FRENCH CJ:   Well, are you really suggesting that is a discretionary matter or are you suggesting there is some kind of a bar in principle?

MR GRANT:   No, it is clearly a matter of discretion, your Honour, but we say for the reason that the examination of whether there was a fraud would

be confounded if it was tried as part of a retrial, that the discretion should be exercised in favour of a separate hearing of that issue rather than a retrial.

CRENNAN J:   It is common ground here that the orders of the Court of Criminal Appeal are perfected, is it not?

MR GRANT:   Yes, there is no doubt about that, your Honour.

CRENNAN J:   No Elliott point.

MR GRANT:   No.  The second point why a retrial would be inappropriate, in our submission, is that it would not remove the taint on the judgment of the Court of Criminal Appeal.  That of course would remain if there was a taint.  In fact, it would remain unexplored largely for the purpose of correcting that record.

The second reason, your Honours, that we say that it is inappropriate to – or not inappropriate to proceed by way of separate proceeding is that in determining the fraud there would be no injustice to the applicant in these proceedings because all that will determine is whether a fraud was perpetrated.  It will not determine either on the criminal test or the civil standard whether or not the applicant committed the criminal offence for which he was originally convicted. 

So it will not trespass upon those particular issues, your Honours, and prejudice the applicant in that sense.  The applicant has got the protection of self‑incrimination.  The applicant has already given extensive evidence in relation to the matters that would be the subject of any consideration of fraud during the course of the appeal proceedings.

Your Honours will see from the materials that the applicant in fact, during the course of the appeal before the Court of Criminal Appeal, gave evidence in chief and submitted himself to cross‑examination and it is not now open to him, in our submission, to complain that he will be asked questions about those matters in any proceeding directed to determining whether or not there was a fraud. 

Your Honours, in the event that the Court found that a fraud had been perpetrated, it is highly implausible that the applicant would or could bring some further appeal on that same ground, so that would effectively be the end of the matter, in our submission, without need to go to retrial.  So, your Honours, they are the submissions we make in relation to the grounds at 2.2 to 2.5 and the question whether or not the retrial is appropriate.  If it please the Court.

FRENCH CJ:   Thank you, Mr Solicitor.  We will not need to trouble you, Mr Walker.  There will be grant of special leave in this matter.  Is a day likely to cover it, Mr Walker?

MR WALKER:   Yes, your Honour.

FRENCH CJ:   Mr Solicitor?

MR GRANT:   Yes, your Honour.

FRENCH CJ:   All right, thank you.  There will be a grant of special leave.  The Court will now adjourn briefly to enable another link to be set up.

AT 9.46 AM THE MATTER WAS CONCLUDED