Nemer v Holloway & Ors

[2004] HCATrans 24

[2004] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A268 of 2003

B e t w e e n -

PAUL HABIB NEMER

Applicant

and

PAUL HOLLOWAY

First Respondent

MICHAEL JOHN ATKINSON

Second Respondent

PAUL ROFE

Third Respondent

Office of the Registry
  Adelaide  No A272 of 2003

B e t w e e n -

PAUL HABIB NEMER

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2004, AT 1.55 PM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please the Court, in both those applications I appear with my learned friends, MS B.J. POWELL, QC and MR J.D. EDWARDSON, for the applicant.  (instructed by Cowell Clarke)

MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia:   If the Court pleases, I appear in both applications with my learned friend, MS R.D. De PALMA, for the respondents in all applications save the third respondent in the judicial review.  (instructed by Crown Solicitor’s Office (South Australia))

HAYNE J:   Yes, I have a certificate from the Deputy Registrar that she has been informed by the Director of Public Prosecutions for South Australia, the third respondent in the first of the matters called, and he does not wish to be heard in the matter and will abide by any order of the Court.  Yes, Mr Walker.

MR WALKER:   May it please, your Honour.  Your Honour, by way of seeking confirmation, I have assumed from the listing that, notwithstanding there are two applications, they ought to be treated as several points in the one case to be encompassed within 20 minutes.

HAYNE J:   Yes.  Is there any difficulty with that?

MR WALKER:   No, your Honour.

HAYNE J:   Yes.

MR WALKER:   Thank you.  If your Honours will permit me, then, the shorthand of referring to the criminal case then to the judicial review case.  They are, we accept, points not about the same proceedings literally, but focused on the same criminal process. 

May I take your Honours immediately to page 64 of the application book in order to emphasise what, in our submission, elevates this case to an appropriate vehicle to test some matters which in truth are not – particularly bearing in mind the Crown’s position – dealt with satisfactorily by Everett or Malvaso in this Court already.  In the middle of page 64 around lines 21 and following the Director of Public Prosecutions, that is himself, says to his Honour during part of the lengthy colloquy that characterises the sentencing hearing in this case that as part of his obligation as Crown counsel:

not being able to tell your Honour what to do, but to try and prevent your Honour falling into appealable error ‑

and then comes the important statement for our position –

Simply I would say here, suspension is not outside discretion in this case -

a statement which could not stand more diametrically opposed to the stance which was then taken in the Court of Criminal Appeal, namely that suspension was appealable error.  That, of course, stands immediately as far stronger a set of facts than applied in either Everett or Malvaso.  Why do I refer to those two cases?  Because the main argument against a grant of special leave – or it is certainly the one which is vigorously put at the forefront of my learned friend’s written submission – is that this case really only raises a straightforward application about which there is a squabble between the parties of the principles well established in Everett and Malvaso; not so for the following reasons.

In Everett the complaint of the Crown was, in effect, the court did not take into account what the Crown did not have a proper opportunity to do, namely indicate its opposition to suspension.  The admonishment, as it were, administered by this Court to that contention in relation to a leave to appeal provision, relevantly similar to the leave to appeal provision in this case, was that the matter of suspension being clear and, indeed, raised by Mr Justice Slicer in that case, as it was raised by Mr Justice Sulan in this case, it was for the Crown to make its position clear.

HAYNE J:   Let it be assumed that there is that difference that can be identified.

MR WALKER:   It is an a fortiori difference.

HAYNE J:   What is the proposition that underpins this branch of the submission?

MR WALKER:   The proposition that underpins is that there is an anterior stage, the criticality of which was emphasised by the approach in Malvaso, that leave to appeal is not to be elided in terms of the approach to it into the consideration of the merits of the appeal point.

HAYNE J:   What, and that the expressed attitude that you point to at page 64 is itself a bar to?

MR WALKER:   No.

HAYNE J:   Is itself a consideration relevant to the grant of leave?

MR WALKER:   Not the former for that would cripple the court in the case of inappropriate connivance, let alone, of course, unthinkable cases of corruption, but would also cripple the court in the face of what I will call ‑ ‑ ‑

HAYNE J:   Just plain error.

MR WALKER:   I am going to call it, with great respect, egregious error or egregious incompetence calling in aid the same kind of distinction between what I will call misjudgment, where once a course of decision making is labelled misjudgment by a higher court, but by reason of hierarchy it becomes error, whereas, of course, if the appellate court had taken a different view it would not have been error, it would have been an available view.

HAYNE J:   But what proposition would you have us endorse - that on leave this court, the Court of Criminal Appeal here, did not what, pay sufficient account?

MR WALKER:   No, it goes further than that.  First of all, with great respect, my friends are correct in having referred to that which is already established in the case law, but they are correct only up to a point because the case law Malvaso and Everett, as your Honours well know, contain very emphatically by the embedded quotations from Chief Justice King in Wilton’s Case, a very plain statement, to adapt the language in Everett, that the Crown having adopted a particular position in this case, as in one of those cases, against suspension – sorry, in favour of suspension as a possibility, it strongly militated against a grant of leave even if the whole of the leave Bench consider that on appeal there would be really good prospects of demonstrating an inadequacy or a manifest leniency.  That is what we would maintain was wrongly elided by the Bench in this case.  The majority of the Bench in this case was correctly, with respect, gathered by the Chief Justice in this case.

Now, the particular matter which emerges from the course of events below which simply does not have an exact analogue in Everett and Malvaso, but of which this case is very much an a fortiori demonstration, is that the Crown had in the most formal plain and unambiguous sense said in relation to appealable error suspension would not constitute it.  The Bench, which by majority granted leave, said that the inhibitions imposed by this consideration strongly militating against a grant of leave - Malvaso and Everett - and they do that only by, with respect, perfunctory implication by citation, does not expose by reasoning how it is that in a case where all the more strongly and deliberately – not by the silence in Everett and not by the agreed standing mute in Malvaso – how it is that that becomes a case where disagreement by the majority of the leave Bench, a disagreement which because it is a majority enables one to label as error, suffices because in both Malvaso and Everett and in any case when an appeal ensues after a Crown has taken an opposite position, someone – always the Crown –is saying something went wrong, there was an error.  So that the very point selected was, of course, common to the authorities and to this ‑ did not distinguish this case.

HAYNE J:   Did the Court of Appeal make new findings of fact in this case?

MR WALKER:   In this case there were new findings of fact made, because as your Honour ‑ ‑ ‑

HAYNE J:   That is to say, did the Court of Appeal proceed on a basis, among others, of specific error by the sentencing judge as distinct from manifest inadequacy?

MR WALKER:   Yes they did, unquestionably.  The majority held that the learned sentencing judge should have proceeded differently – I want to address that from the course of the proceedings in just one moment –and after, and I stress, after granting leave.

HAYNE J:   Yes.

MR WALKER:   Your Honours will recall the majority, as it were, split.  Perhaps that is a dramatic expression, but on the one hand Justice Prior said, “Nothing more should be done about the merits before giving the applicant an opportunity to adduce the evidence”, whereas Justice Vanstone said, “I can already say from the material upon which I have formed a view”, that is the differences between the depositions of the victim and the other two witnesses and the perpetrator, “I can already form a view on the papers and I do so, and here’s my announced adjudication of what the minimum should have been”.  So there was ‑ ‑ ‑

HAYNE J:   Now, in the context of an ultimate finding of specific error of fact what proposition do you advance that would support giving what appears at 64 of the application book the significance you attribute to it?

MR WALKER:   That at the foot of 63 a different but related matter is introduced, where with equal plainness when one traces it through – and it is not difficult – the Crown took a position about the facts known to the court in the parlance which were the factual bases.  May I just trace that.  At the foot of 63, Mr Rofe, the Director, is asked by his Honour, “in respect of the factual basis” ‑ now, this is not the sentencing discretion as to suspension or not, this is the factual basis, I think it is class 1 in House v The King, the best way to attack a sentencing discretion:

in respect of the factual basis, Ms Powell put to me a number of matters in addition to the material that’s contained in the handwritten.

Now, that is, in fact, then a cut‑off.  “Handwritten” ought to be treated as a reference to a typewritten document of which I am instructed there had been some handwritten changes.  Your Honours will find that, the document, commencing at page 3 of the application book, and the way in which it was handed up is recorded at page 36.  That is of some importance - could I take you to 36.  That is after a long luncheon adjournment.  I do not mean for a long lunch, I mean there was real work to be done because before lunch his Honour had, with respect, in exemplary fashion in accordance with what this Court said in Olbrich and later in Weininger, warned both counsel that he was not going to proceed upon the basis of mere statements where there were differences that required to be adjudicated, so it was left.  “Lady and gentleman, differences between you.  I’m going to have to decide” - comes back after the adjournment, Ms Powell says:

Thank you for the opportunity to take some instructions and to enable us to confirm what our position is.  During the break we prepared –

that means for the accused –

a written submission, with some annexures ‑

that is the document 3 and following –

I’ve shown that to my learned friend ‑

so that is the Crown –

so that, insofar as we’ve taken his name in vain –

“in vain” is facetious, I can assure your Honours –

there’s no contention between us.

Now, that is plain, square and in the open.  If one goes to the document handed up, starting at 3 - on page 3 between lines 10 and 20 or thereabouts one sees that the particular matter of fact, where was Mr Nemer when he fired the shot, which in itself is not significant but which bears significance in relation to the degree of recklessness - aiming over the van, aiming at the van, aiming at the victim - the Crown never put aiming at the victim but there is an obvious difference between aiming at a van and aiming over a van, just as there is a difference between what my learned friend Ms Powell put, namely this is reckless but unfortunate in that the arc of the raised gun happened by mischance to coincide so as to level with the victim’s head on its way up to what was professed to be the intention of not firing at, but over the van - that was of significance.

That is why there is the to‑and‑fro in real detail between counsel and by the judge.  That is the version then put, and on pages 4 and 5 – I do not need to read it – your Honours will see that Ms Powell canvassed the opposite versions, the very versions that for example Justice Vanstone would have preferred on the papers before even hearing from Mr Nemer, and put matters of appropriate argument in relation to what might be called the reliability, when it comes to estimating stance of somebody you have not seen until you hit and distance of something that is literally explosive as it happens to you by surprise, of the particular versions.  Those are matters of argument and a document to which the Crown had access, and your Honours see for example halfway down page 5 the “snapshot” argument being put by my learned friend Ms Powell.

Then there was dealing in argument, with the alternative that the judge might accept Mr Williams, the victim, et cetera:  see lines 35 and following, and then over the page at page 6, lines 15 and following, a deliberate crafting of the defence submission on sentence to take account of the possibilities of different views of the fact.

Now, it was on the basis of that factual position that one has to then evaluate what, at page 64, fell out between judge and the Crown, and the critical passage, which I regret is not in our written submissions until our reply submissions, it is there, falls out in what his Honour, entirely appropriately in light of Olbrich did - line 5:

Does the Crown accept that as a basis upon which I can go ahead and sentence?

And then with admirable monosyllabic clarity the Director himself says, “Yes”.  Now, your Honours, in light of that ‑ ‑ ‑

HAYNE J:   Do read on:

I accept there are degrees of recklessness, your Honour may have to find your way through that.

MR WALKER:   Yes, but that is why I have drawn attention to the amphibolous way the written submission was put.  Whether it be this or that, there is the degree of recklessness revealed of a particular kind, and the Director is accepting that.  So he is accepting, as a matter of argument, both the way in which the facts are put, that is the basis for sentencing, and he is accepting the way in which it is bifurcated, be it this or that, this is the result.

That is what the majority in the Full Court wished to depart from when they considered the first separate very important step of the so‑called rare or exceptional matter of granting the Crown leave to appeal against sentence.  What the Director says, in our submission, taken together with the earlier passages which are cited in our written submissions where he had said he was not in a position to dispute what was being put on behalf of Mr Nemer concerning his running stance and his eight metres away from the van, that really means the passages at 96 and 107 in Justices Prior and Vanstone respectively would need to be, in our submission, looked at with some doubt as to the completeness or correctness of the description of what happened in the course of the sentencing proceedings.  Paragraph 64 for example on page 96, a quote from Justice Prior:

Things said by the Director indicated that facts asserted by Mr Nemer’s counsel remained controverted.

Following some of that controversion which, by the way, never rose beyond the position of not being able to agree and, therefore, cannot dispute because you do not know, and at page 107, exactly the same point, paragraph 106:

The Director was far from agreeing to the basis suggested by Ms Powell –

Well, “far from agreeing” is really not, with respect, a complete or proper summary of the “Yes” to which I have drawn your attention on page 64.  That is why this case does provide a proper vehicle because if the Crown in South Australia says, as they do, that this was consistent with Everett and Malvaso then all of that principle has been stepped around, been run around by the simple device of saying, “But we disagree with the basis with which the Director agreed” and which he told the judge in a very careful exchange over a morning and afternoon was a proper basis to proceed, in circumstances where, as this Court has already said, the procedure in question may or may not involve the calling of evidence depending upon the position which Bench or the other side of the Bar table indicate would be appropriate in light of that which is in contention.

What the judge did, with great respect, was an entirely careful, transparent and proper approach to the question, which makes ‑ to return to something that your Honour Justice Hayne raised with me by way of question – the passage in the middle of 64 where suspension is very frankly put by the Director as within the discretion because it would not be appealable error to suspend, as the very kind of matter which Chief Justice King said in Wilton, which this Court has taken such pains by quotation and approval to place at the forefront for intermediate appellate courts considering Crown leaves to appeal on sentence, namely the general case of the Crown seeking to depart and no ground being ascribed to the exception in this case, other than the so‑called error, which was, of course, on a matter of fact and a matter of argument where both sides had grappled with this question of degrees of recklessness depending where you were and what you were doing as the gun went off.

Now, it is for those reasons, in our submission, that the precedent of the Full Court is a dangerous one because it enables the proleptic look at the error of fact for which they want to argue on appeal as the reason why in the interests of the administration of criminal justice there must be, probably not may be, from the way the reasoning is pronounced, there must be a grant of leave.  That abolishes all the jurisprudence in Everett and Malvaso, both of which cases make it clear that the suspicion, even prima facie view, that the sentence in question would be susceptible to review if there were an appeal does not suffice to justify a grant of leave, bearing in mind the deep‑rooted matters of principle in relation to double jeopardy and the principle for which we have contended in writing, that the Crown, like the defence, within the limits and subject to the exceptions that principle dictates ought to be bound by the conduct of their case below.

HAYNE J:   Before you sit down, you have dealt evident reason with the second of the applications.  What practical outcome could you achieve were leave to be granted in the first matter?

MR WALKER:   The matter would be ‑ ‑ ‑

HAYNE J:   The appeal having been instituted, heard and determined by a superior court.

MR WALKER:   Yes.  They do go together, there is no question about that.  The practical outcome would be that rather than as a result of the success in the criminal case a remitter for rehearing of the leave application, it would be remitted for, being dealt with in accordance with the Director’s position shorn of the excessive dictation ‑ ‑ ‑

HAYNE J:   I just do not understand that, Mr Walker.

MR WALKER:   That would mean there would be no application because ‑ ‑ ‑

HAYNE J:   The only relief sought relevantly was declaration.

MR WALKER:   Was a declaration, quite.

HAYNE J:   That is going to get you nothing.

MR WALKER:   Well, this is not one of those decorative declarations, your Honour.  The Chief Justice, in the passages we have referred to in our reply on this point, that your Honours will have seen, referred to the fact that in light of an affirmative declaration in our favour the Director has two choices.  Not to proceed because he had decided not to proceed, that is he would be freed of the dictation or the Court would be undoubtedly asked to stay the proceedings.  Now, that is not hypothetical but actual.

For those reasons the judicial review point does add this element practically, to answer your Honour Justice Hayne.  We would not just have the question of remitting for the leave to appeal to be determined in accordance with the principles which ought to bind the Crown in relation to sentence applications for leave to appeal, but also in accordance with the true position, namely that if the Director did not consider there should be an application, the Minister could not direct him to file one which means that he would either abandon the application if he remained of that view or there would be a stay application by reason of the fatal infection of the decision

to institute by reason of the excessive dictation.  May it please your Honours.

HAYNE J:   Mr Solicitor, we need not trouble you.

In matter A272 of 2003 the applicant seeks special leave to appeal against the orders made by the Full Court of the Supreme Court of South Australia in disposing of an appeal by the Director of Public Prosecutions against the leniency of a sentence passed on the applicant at first instance.  The principles to be applied in deciding whether to grant leave to the prosecution to appeal against sentence and the principles to be applied in deciding such appeals are well established.

We are not persuaded that it is arguable that there has been any miscarriage of justice in this matter or that it is in the interests of justice in the particular case, or more generally, that there be a grant of special leave in this matter.  Thus, in matter A272 of 2003 special leave is refused.

The applicant also seeks special leave to appeal against orders of the Full Court of the Supreme Court dismissing his application for an order declaring that a direction given by the Attorney‑General for South Australia to the Director of Public Prosecutions for that State was invalid.  That direction required the Director to appeal against the leniency of the sentence imposed on the applicant.

In the circumstances where the application for leave to appeal against the sentence itself fails there is no utility in granting leave to appeal in the application for judicial review.  Accordingly, in matter A268 of 2003 special leave is refused.

Mr Solicitor.

MR KOURAKIS:   If the Court pleases, I seek costs in A268 of 2003 for the first two respondents.

HAYNE J:   Yes.  Are you in a position to resist that, Mr Walker?

MR WALKER:   Yes, but only by pointing to the compendious way in which the proceedings have been presented, as if they were two aspects of one controversy.

HAYNE J:   In matter A268 of 2003 special leave is refused with costs.

AT 2.22 PM THE MATTERS WERE CONCLUDED