Murphy v The Queen

[1997] HCATrans 15

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A35 of 1996

B e t w e e n -

DION SHENNAN MURPHY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 FEBRUARY 1997, AT 10.55 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR C.J. KOURAKIS, for the applicant.  (instructed by Caldicott & Co)

MS W.J. ABRAHAM:   If the Court pleases, I appear with my learned friend, MR P.F. MUSCAT, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

MS SHAW:   The special leave point in this case is concerned with the extent to which persons convicted in the superior court are entitled to a review of their convictions on grounds raising questions of fact, or mixed fact and law.  If the test is, as it has been traditionally understood and commonly stated, that there is an arguable case, then the entitlement to review will be broadly the same as when there is a conviction in a summary court, or in civil cases where statutes provide an immediate right of appeal.

If the test is reasonable prospects of success, the entitlement is much restricted.  The underlying matter of principle is that there ought to be at least an opportunity for appellate review of the decision of the trial court.  That principle is recognised for all civil jurisdictions in civil judicial decisions, and now for many administrative decisions.  It would be contrary to that principle, we submit, if a person convicted of murder was deprived of the opportunity of having the trial result reviewed.  The test of reasonable prospects of success would be commonly understood to mean if not greater than 50 per cent chance of success, at least close to that.

If that test is the test to be applied, it must involve some evaluation of the evidence by the Court in order to consider the strength of the argument and the application of the relevant law.  It also requires that ‑ ‑ ‑

KIRBY J:   But is this not a challenge to the enactment by the Parliament of South Australia of a special provision?  How do you overcome the fact that the Parliament of South Australia has provided for a leave mechanism which provides a gateway through which you must pass?

MS SHAW:   We say that the statutory mechanism, as provided, provides for an appeal on a ground of mixed fact and law, or fact alone, but what the appeal court in this case has done is to set too high a test in the interpretation of that statute.  In other words, the common form of appeal exists in this State; namely, that a person is entitled to appeal in any matter with leave if there is a question of mixed fact and law.  We submit that if the test was reasonable prospects of success it would, of necessity, limit the right of persons to have what we say in principle that they ought to have; namely, the right to be heard.

KIRBY J:   Did it matter in practice in this case, because the Court of Criminal Appeal appears to have gone pretty thoroughly through the facts and the arguments?  If you had not known that there was a leave mechanism in your State, you would not have perhaps noticed it.  What is the practicality in this particular case?

MS SHAW:   Your Honour, the practicality is that this was a very complex and extensive voir dire application that was subject to review.  There were three separate interviews.  The grounds of appeal raised a number of issues of law relating to how the discretion ought to be exercised and questions of voluntariness.  Written submissions were provided.  Counsel orally addressed two specific arguments only related to the proper inferences to be drawn from the evidence as to the requirement for a caution and a matter not addressed specifically by the learned trial judge at all relating to whether or not the conduct of the police had in fact focused so much on the accused that he ought to have at least been advised that he was the focus of the investigation in circumstances where they were urging upon him a moral duty to co‑operate as a relative of the deceased.

In other words, the oral argument for leave was addressed upon the basis of counsel’s understanding of the position, namely that he had to establish an arguable point based upon the papers, the grounds of appeal and what he orally presented.  He made that plain in the written submission which appears at page 66 of the application book that he was contending he had a clearly arguable case.  If there was a hearing on the merits, which we say would have been necessary to make a determination of reasonable prospects of success, counsel would have traversed the evidence and the applicable law and asked the court to consider specific omissions which were contended for both in the grounds of appeal and in the written submissions as to the approach of the learned trial judge.  So we say that the judgment ‑ ‑ ‑

KIRBY J:   What is the practice in South Australia?  Do you get two hearings?  Is there first the leave application and then, if you are granted leave, the substantive matter, or do they get telescoped?

MS SHAW:   What occurs is that there is a leave hearing which occurs on the arraignment day, so that the leave applications are placed in the arraignment list which itself we say exemplifies the cursory nature with which these applications are dealt.  If leave is refused, an accused has the right to apply in writing to the Full Court for leave.  In this case, what occurred was that leave was refused by the single judge.  The applicant then put written submissions to the Full Court in writing and the question of leave was referred to the Full Court rather than being considered in private.  So, effectively, the Full Court had before it ‑ ‑ ‑

DAWSON J:   I am sorry, I am not following.  The single judge did not consider the question of leave but referred it to the Full Court, is that right?

MS SHAW:   No, the single judge refused leave on these particular grounds, granted leave on other grounds which included questions of law alone, and thereafter the applicant made written ‑ ‑ ‑

KIRBY J:   You do not need leave if there is a point of law, do you, you can appeal as of right?

MS SHAW:   That is right.

KIRBY J:   So he did not have to do anything.

MS SHAW:   In our State the practice is to list applications for leave even if, though grounds of appeal are questions of law, in other words, if we were asserting a question of law it is still the practice we must come on for leave before a single judge and that is what occurred in this case.

KIRBY J:   Is that to add to the grounds of law that you get up as of right?  Is that correct?  You have an appeal as of right on a point of law?

MS SHAW:   Yes.  It is effectively a system ‑ ‑ ‑

KIRBY J:   If you want to add any ground that relates to a challenge on the facts you have to seek leave and you have to go through the process to add those grounds to the grounds that come up as of right.  Is that correct?

MS SHAW:   Not in practice.  In practice all the grounds are lodged together and at the leave hearing the judge decides whether or not a particular ground does raise a question of law which gives you an appeal as of right, and whether or not another ground, for example, might be mixed fact and law, and leave must be required.

DAWSON J:   That is done in private?

MS SHAW:   No, that is done in open court by a single judge.

BRENNAN CJ:   This was considered in Coulter’s Case was it not, the South Australian procedure?

MS SHAW:   No, not this procedure, your Honour.  The procedure in Coulter’s Case that was considered was the validity of the rules that enabled a hearing in private of grounds upon which leave had been refused.  The argument in Coulter was that those rules were invalid or outside the jurisdiction of the court.

BRENNAN CJ:   Yes, I appreciate that.

MS SHAW:   But, in this case that issue does not arise because the grounds were referred to the Full Court for argument in open court.

BRENNAN CJ:   In the Full Court, looking at page 77, line 40, there was a conclusion reached by his Honour:

that leave should be refused to the extent that it involved an attack upon His Honour’s conclusion based upon the finding that Mr Murphy was not a suspect on 17 August.  I was satisfied that there was no real prospect that an attack upon His Honour’s conclusion on this point could succeed.

How do you face up to that conclusion?  What do you say about that?

MS SHAW:   We say, first of all, that his Honour has applied the wrong test because counsel addressed his Honour, not from the point of view of finally persuading the court that on the merits and in the light of all the evidence there was no real prospect of success, but merely to identify the point that he wished to raise which he contended was arguable, that is, that on the objective facts and circumstances it was plain that first of all they disclosed the police must have had reasonable cause to suspect but, in addition, counsel argued that his Honour the learned trial judge had not considered the question of whether or not the accused was treated as a suspect or was the prime target of the investigation and their conduct treated him as a suspect, and therefore that issue gave rise to the need for a caution.  That was the argument of counsel, but he did not have the opportunity by reason of the constraints of a leave application, to properly take the court to all of the evidence that supported his argument.

BRENNAN CJ:   Is not that the point though that on a leave application counsel must be able to demonstrate an arguable case?

MS SHAW:   Yes.

BRENNAN CJ:   If, having put whatever they have got to put on a leave application, the Court is of the view that the point could not succeed, then leave is refused, and in Coulter’s Case this Court laid down that the leave procedure was intended to provide some filter for the cases which could be brought to the Court of Criminal Appeal in order that time should not be wasted.  Now, where is the error?

MS SHAW:   The error is, we say, that that test is too high, that one cannot, on a leave application establishing an arguable point, properly address the Court on the evidence for the Court to properly determine whether there are real prospects of success, and we say here ‑ ‑ ‑ 

BRENNAN CJ:   But that is the very nature of the leave application.  If it is a question of law, you have a right of appeal.  It is when it is a question of fact that you do need the leave and so it is on fact cases that this problem of leave arises.  That is what the legislature has provided.

MS SHAW:   We say that the difficulty is that it is not the merits of the argument that should be the subject of the leave application.  It is whether or not the applicant has an arguable case, that this is the wrong test and, indeed, we say that the approach his Honour the Chief Justice adopts as being erroneous is clearly demonstrated because in order to dispose of an argument which he recognises was not addressed by the learned trial judge and he accepts was arguable, he proceeds to make a finding of fact as to the applicant’s state of knowledge at a particular time which was not a finding of fact made by the learned trial judge.  In particular, the finding was at page 79 of the application book, line 44:

In my opinion, it must have been clear to Mr Murphy almost from the very beginning that the matter was a serious one and that his possible involvement was one of the matters being inquired into.

KIRBY J:   Your client acknowledged that in the passage which is in the respondent’s submissions, when the police put to him ‑ ‑ ‑ 

MS SHAW:   Your Honour, that passage appears at the very end of the third interview, namely, about eight hours after the questioning had commenced.  The first interview in fact was one where the police accepted that they withheld from him the knowledge that his mother was even dead and that the accused believed the police were there about a fine and asked them several times, “What’s the problem?”  And the learned trial judge based his whole approach to the question of the caution upon the basis that the accused was not a suspect, that his involvement in the crime was not in issue.  So we say that ‑ ‑ ‑ 

BRENNAN CJ:   Ms Shaw, at page 80, at line 13, his Honour comes to the conclusion about the granting of leave.  He says he:

was satisfied that there was no reasonable prospect.....was satisfied that Mr Murphy did understand that his possible involvement was under investigation.  Accordingly, I was of the opinion that leave to appeal on this basis also should be refused.

Your attack is on his Honour reaching that state of satisfaction about no reasonable prospect, is that right?  His Honour should not have reached that state of satisfaction, is that correct?

MS SHAW:   That is so, yes.

BRENNAN CJ:   Now, if he did reach that state of satisfaction, there is no doubt but that his conclusion was correct.

MS SHAW:   We say no, your Honour, because if one addressed the evidence, as I have said, it is totally contrary to not only the findings of the learned trial judge, but, in fact, what was specifically asserted by the police officers, both to the applicant and to his solicitor, that the accused was not a suspect, that he was not going to be charged, and he was merely being spoken to as a relative of the deceased.  In other words, this finding flew in the face of the specific evidence of the police which his Honour the trial judge accepted.  But we say that that ‑ ‑ ‑

DAWSON J:   Ms Shaw, can I just stop you for a minute?  You may have said, but I may have missed it.  The application for leave and the hearing, if leave were granted, were all conducted at the same time, were they, here?

MS SHAW:   Yes, but not on these points.  It would have been conducted at the same time if leave was granted, but what occurred was the ‑ ‑ ‑

DAWSON J:   Yes, I appreciate that, but the application for leave and the appeal were heard at the same time.  In the event leave was refused?

MS SHAW:   That is so.  So, what we say is that the cases which ‑ ‑ ‑

DAWSON J:   So that if the judge had granted leave, having regard to what he said, he would have then dismissed the appeal on this point anyway.

MS SHAW:   Well, that depends upon whether or not the further argument in relation to the relevant law - further references to the evidence - may have persuaded his Honour that ‑ ‑ ‑

DAWSON J:   What further argument?  I understood you to say that the application for leave and the appeal were heard at the same time.

MS SHAW:   Your Honour, the application for leave in relation to the grounds of appeal were heard first; that is, the application for leave was heard first.  The court then ended the argument on that point, and then proceeded to the other specific grounds of appeal.  It was not a case where there was a general argument as to the merits ‑ ‑ ‑

DAWSON J:   If the court had been disposed to grant leave on this point, would it have been looking for further argument, or had all the argument that was to be put on the point - had it been put?

MS SHAW:   No, as we said in our outline, it would have gone for at least a day if leave had been granted.  There were three separate interviews and a number of weeks of evidence.

DAWSON J:   Was it a two‑stage process?  I am not clear.  I mean, the normal procedure in courts of criminal appeal is to hear all the argument on the matter as on an appeal and, at the end of the day, leave might be granted and, if it is, the appeal will be dealt with then and there.  If leave is refused, well, that is the end of the matter.   Now, what was the procedure here?

MS SHAW:   In this case, we were restricted purely to the question of satisfying the court about leave.  We were not given permission ‑ ‑ ‑

DAWSON J:   It was a two‑stage process, you say?

MS SHAW:   A two‑stage process was implemented.

KIRBY J:   And you told me earlier that that is the practice in South Australia under the special provision in South Australian law.

MS SHAW:   That is so, because of the in private arrangement, whereby in private you can either dismiss the appeal, or refer it to the Full Court for leave, or grant leave.

KIRBY J:   And that seems to distinguish South Australian practice from other States.

DAWSON J:   But this was in the Full Court.

MS SHAW:   Yes, it was in the Full Court.  But that is why we say that this test is too high, because the practice restricts counsel to satisfying the court as to leave on generally accepted principles of arguable case.  That is what occurred here.  I notice the time, but can I put to the Court to ‑ ‑ ‑

KIRBY J:   Could I just ask one very quick question.  At some stage you were arguing that you had an appeal as of right because the exclusion of the voir dire evidence, or the inclusion of it, required a ruling of law.  That was ruled against you in the Court of Criminal Appeal.

MS SHAW:   Yes.

KIRBY J:   Do you advance that argument before us?

MS SHAW:   No.  What we say is that there were questions of law that were relevant to the exercise of the discretion, and in that sense there was mixed fact in law.  We say Williams’ Case in the High Court ‑ ‑ ‑

KIRBY J:   Is it enough that there is some legal point?  If it is mixed fact and law, do you have an appeal as of right, in your submission?

MS SHAW:   No, we do not, not in this State, not on the basis of Williams v The Queen in the High Court, which places questions of discretionary admission of confessions in the category of cases requiring leave.  Can I just quickly refer to our argument in relation to sentence, because we say that the approach of our Court of Appeal is, in relation to the fixing of non-parole periods, so erroneous in that the present practice ‑ ‑ ‑

BRENNAN CJ:   Before you go on, I should say that your time is extended by five minutes because I want to ask you a further question.  Ms Shaw, in this case, was the application for leave first considered by a single judge, then was the application renewed by a written application to the Full Court?

MS SHAW:   Yes.

BRENNAN CJ:   And was that application then referred into the Full Court for oral argument?  Is that the procedure?

MS SHAW:   Yes, only on the question of leave.

BRENNAN CJ:   That is right.

MS SHAW:   That is the procedures.

BRENNAN CJ:   That is the procedures.

MS SHAW:   Yes.

KIRBY J:   Is there any time limit, may I just interpose, is there any time limit on your argument or can you just argue as long as you need to?

MS SHAW:   The time limit imposed is because of the constraints of a leave application, and we are asked to go to our points, identify our argument.  That is the usual procedure because of the common - consistent with the authorities, the understanding that the test is:  counsel has to identify the point, the arguable point, and how it arises on the papers, and the court determines whether or not there is an arguable point.  His Honour the Chief Justice in this case made it ‑ ‑ ‑

KIRBY J:   I am sorry, I interrupted the Chief Justice.  I just wanted to understand whether there was a limit.

BRENNAN CJ:   When the matter went into the Full Court the first matter that the Full Court asked counsel to deal with was the application for leave to proceed, and if I understand what you have just said to Justice Kirby, there was no time limit placed upon the submissions that might then be made, but counsel was asked to give his or her submissions in relation to the question of whether there was an arguable case.  Is that right?

MS SHAW:   Yes.

BRENNAN CJ:   Following the conclusion of that argument the Full Court then heard argument on the questions of law as to which the applicant had a right of appeal.

MS SHAW:   Yes.  The procedure was, as I understand it, his Honour the Chief Justice ruled that leave would not be granted in relation to the argument as to the grounds of appeal 1 to 3 before moving on to a consideration of the other grounds of appeal.

BRENNAN CJ:   Grounds of appeal 1 to 3 were those dealing with the admission of the confessions?

MS SHAW:   Yes.

BRENNAN CJ:   And those were the grounds which required leave to appeal?

MS SHAW:   Yes.  So we say that within the constraints of the time that was allotted, it was not allotted specifically but obviously the appeal had been allotted a set time and the understanding was that the question of arguable point would occur first, and so the result is ‑ ‑ ‑

BRENNAN CJ:   Ms Shaw, could I just ask you one other question.  When counsel was asked to direct his or her attention to the subject of whether there was an arguable case, they then identified the factual matters upon which they sought to rely in order to raise the arguable case, is that correct?

MS SHAW:   Your Honour, there was a summary ‑ ‑ ‑

BRENNAN CJ:   They did not develop them ‑ ‑ ‑

MS SHAW:   They were not developed.

BRENNAN CJ:   ‑ ‑ ‑ but they referred to them?

MS SHAW:   Yes.  Your Honour, can I perhaps make this plain, that counsel was relying on all of the arguments in the written submission and the grounds of appeal but only orally developed two aspects of his argument - summarised them.  That is, summarised the two aspects of his argument.  He did not address specifically the arguments in his written outline because of the nature of this application.

KIRBY J:   That presumably is what the Parliament of South Australia envisaged by this procedure, that it is all going to be circumscribed, that there will be written argument and that the essence of it will be put up and then the time of the court will be saved.

MS SHAW:   Yes.

KIRBY J:   What was the actual lapsed time of the hearing approximately?

MS SHAW:   The leave hearing?

KIRBY J:   Yes.

MS SHAW:   About an hour and a quarter.  But, your Honours, what we say is that if the reasonable prospects of success test is to be implemented, it must mean that the court could not take a cursory approach, as it has done in this case, to a consideration of the only two arguments that have been advanced.  The result is that this applicant has never had considered the specific grounds of appeal 1 to 3 that were lodged and the specific issues relating to the exercise of discretion that were complained of.

KIRBY J:   But presumably the judges have the written argument before they come into court?

MS SHAW:   Certainly.

KIRBY J:   Therefore, all that counsel in their oral submissions are doing is what you are now doing, namely getting to the essence of it to try and enliven the attention of the judges to grant the leave.

MS SHAW:   Yes, that is precisely our submission.

KIRBY J:   But the judges have already read the written submissions.

MS SHAW:   Yes, but for that reason, if one needs to make a finding of fact to dispose of an argument and arrive at a “no reasonable prospect of success”, it is contrary to the nature of the procedure to allow that decision to be made.  I have not addressed the Court on sentence, if the Court pleases.

BRENNAN CJ:   No, I think you should have another three minutes in which to address us on the question of sentence.

MS SHAW:   If the Court pleases, this man was a 19 year old first offender and his Honour Justice Duggan imposed a sentence of 18 years.  The Court of Criminal Appeal increased that sentence to 25 years in accordance with principles that it has adopted, in particular in the case of Bricis, which his Honour the present Chief Justice states is along the lines that the younger you are the more you get because effectively, the sentence, the non‑parole period must be a proportion of the head sentence.  If one looks at a life sentence, his Honour the Chief Justice and our courts are applying the principle that one looks at the life expectancy of the prisoner and determines the non‑parole period as a proportion of that.  We say that such an approach is contrary to a legislative scheme which allows for parole.  That is, that it restricts the discretion of a sentencing judge, erroneously; and more importantly, rather than youth being a mitigating factor it has the result of leading to a longer non‑parole period.

That was the basis upon which the court interfered here, and the reasoning of his Honour the Chief Justice was that effectively, this

non‑parole period represented so low a proportion of this man’s head sentence that it had to be extended.  We say that leave ought not have been granted to the Attorney‑General.  In this case there was no doubt this man was young, with no record, there was no error of principle in the approach of the learned sentencing judge who had the benefit of a psychological report, and we say that the interference based upon a principle of proportionality of the head sentence is erroneous and wrongly attributes to the setting of a non‑parole period principles that are more appropriate to the fixing of a head sentence as this Court discussed in the case of Bugmy upon which we rely.

That approach is prevalent throughout South Australia in relation to all sentencing matters, not just mandatory life sentences, and we rely on the case of Pight where his Honour Justice Cox takes the view that although there has been a reversal of automatic release at the end of a parole period so that it is now discretionary, that has not had any real effect on the approach of the court to fixing non‑parole periods.  We say that is an important question in relation to sentencing practices and we say it is an important issue in particular in relation to the setting of non‑parole periods, and we seek leave to appeal that issue.  If the Court pleases.

BRENNAN CJ:   Thank you, Ms Shaw.  We need not  trouble you, Ms Abraham. 

There is no error of principle as to the granting of leave to appeal appearing in this case.  An exercise by the Court of Criminal Appeal of the sentencing discretion does not by itself attract a grant of special leave.  Accordingly, special leave will be refused.

AT 11.24 AM THE MATTER WAS CONCLUDED