NH v The Director of Public Prosecutions; Jakaj v The Director of Public Prosecutions; Zefi v The Director of Public Prosecutions; Stakaj v The Director of Public Prosecutions

[2016] HCATrans 136

[2016] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A14 of 2016

B e t w e e n -

NH

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
  Adelaide  No A15 of 2016

B e t w e e n -

RROK JAKAJ

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
  Adelaide  No A16 of 2016

B e t w e e n -

DAVID ZEFI

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
  Adelaide  No A19 of 2016

B e t w e e n -

DARIO STAKAJ

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

FRENCH CJ
KIEFEL J
BELL J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 JUNE 2016, AT 10.15 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my friend, MR S.A. McDONALD, for the appellant in Zefi.  (instructed by Patsouris & Associates)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear with my learned friend, MR A.M. DINELLI, for the appellant Jakaj.  (instructed by Ben Sale)

MR S.G. HENCHLIFFE:   May it please the Court, I appear with my learned friend, MR S. GEORGIADIS, for the appellant Stakaj.  (instructed by Steven Georgiadis & Associates)

MR M.L. ABBOTT, QC:   May it please the Court, I appear for the appellant denoted by the initial “N”.  (instructed by Legal Services Commission of South Australia)

MR A.P. KIMBER, SC:   If the Court pleases, I appear with my learned friends, MR C.D. BLEBY, SC and MS F.J. McDONALD, for the respondent.  (instructed by Director of Public Prosecutions (SA))

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   May it please the Court.  Your Honours will find the forms of applications that were before the Full Court in volume 2 of the appeal book.  The first one is at page 273, and that may be regarded as that which provided the vehicle for the determination of the Court.  At page 274, you see a reference in paragraph 1 to:

appeals and applications for permission to appeal –

In relation to my client, that was an application for permission to appeal sentence – the statutory appeal with permission available to a person convicted – and that was for the conviction of manslaughter.  That, in the event, was not before the court in the hearing which produced the judgment before this Court.

The other appeals included appeals against conviction, to which some reference your Honours will have found in the written submissions by my friends.  In paragraph 4 there is a critical preamble to the way in which this application was put and one sees there a reference to the notion of the jurors’ evidentiary material being:

relied upon by the Court as accurate and truthful evidence of the foreperson as to his actions and thoughts –

and then there is, as your Honours know, a reference to the possibility of affidavits “from each member of the jury” - see paragraph 3.  Then the notion of the court having been misled is introduced in paragraph 5 and something described as:

so‑called ‘verdicts’ of ‘not guilty’ –

is identified in paragraph 5 and it is sought by the Crown to be, as it is there put, “expunged or quashed” and that the judgments acquitting of murder - see paragraph 6 – “be expunged or quashed” and then in paragraph 7 the manslaughter convictions “be expunged or quashed”.  So at this point we have the Crown seeking by application, as it is put, to expunge or quash guilty verdicts that the Crown had secured.  In paragraph 8 there is then an invocation of what is called:

the Court’s inherent jurisdiction and in the interests of justice ‑

a plea for the order of a new trial on murder.  The concept of misleading is then repeated in the grounds that your Honours will see on page 275, in particular, paragraphs 4 and 5 where the language of false statement is used to describe what are said to be “The incorrect or misleading statements by the foreperson”.

There was another application. It is not obvious at all that it was dealt with by the Full Court. Its text starts at page 399 in volume 2. This is a statutory application. It arose because application was made to her Honour the trial judge who declined to refer or reserve a question or to state a case and, pursuant to subsection (6) of section 350 of the Criminal Law Consolidation Act 1935 (SA), the orders were sought from the Full Court. Your Honours see them starting on page 399. These are in the form of questions to be reserved and for the trial judge to be directed to refer them to the Full Court.

One sees it covers a gamut of issues – many, I think probably all of which really are, in effect, before this Court.  There are questions of admissibility of what are called the “affidavits of the jurors” to which I will be coming, questions about the “‘not guilty’ verdict” in each to murder – they are described by new terminology as “an unlawful verdict”.  Then, in relation to the guilty verdict for manslaughter – again, a question about whether it was “an unlawful verdict”. 

Then, the judgments entered following and upon those verdicts whether they are also unlawful - see question d - then a question of power under section 351A, to which I will be coming very shortly, to set aside the judgments of acquittal as well as those of conviction and to order a new trial.  I will not go to the grounds which are there referred to by reference to an affidavit. 

Your Honours, thus there was before the Full Court a situation which neatly, we submit, remarkably, we can find no precedent, reversed a position of the Crown and I stress it was a reversal undertaken after everything had been made known, that is, the position taken which was the original position occurred after the Crown knew everything to which reference is made in these applications. 

It is not a case where a reversal of position can be explained by following upon the receipt of new information.  All the information had been gained.  An original position was taken and then an opposite position was pursued.  The original position taken can be seen referred to in the passage of proceeding following the acquittals and convictions but start – you can pick it up at page 203 in volume 1 of the book.  I will be selective ‑ ‑ ‑

GORDON J:   What is this transcript from, Mr Walker?

MR WALKER:   This is transcript from 2 October.

GORDON J:   I understand the date.  Is this the application for the stated case?

MR WALKER:   No.  In form, this was in the nature of case management and it commences with an application for sentencing to be adjourned ‑ ‑ ‑

GORDON J:   I see.

MR WALKER:   ‑ ‑ ‑which we will pick up at page 201.  It expanded, as one might expect, into a bit more than that.  There was a discussion about what might be called neutrally “the problem”.  Perhaps it is appropriate in light of Justice Gordon’s question to remind you of the dates.  I will not go to them in detail.  The events are set out in paragraphs 9 to 13 of our written submissions. 

It goes something like this - the discharge of the jury at 2.34 on 22 September.  About 4.00 pm on 22 September the foreperson arrives at the court premises.  At about 4.50 that person met with the acting jury manager.  By about 5.10, information has been received.  Then over the period 24 to 26 September the statements, which were later verified by affidavit from the other jurors, were obtained.  They were statements in response to what we have called interrogatories, drawn by the trial judge.  It was not until 30 September that the parties were informed by being supplied with that material.  Then 2 October, the occasion that this transcript comes from, is the first appearance thereafter. 

You see that counsel for Jakaj makes the application, which turns out to be, as I say, to defer sentencing.  You will find that at page 203.  By then a position was explicitly understood clearly by the parties to be under consideration.  You see at about line 20:

there is still alive the possibility that the verdict is a nullity and that the Crown may seek some declaratory judgment to that effect which could –

et cetera.  Because of the possibility of being rearraigned and retried on a charge of murder, not surprisingly, the position was taken that there was something in the nature of prejudice in launching into the kind of material, both evidentiary and argument, upon a sentence for guilty of manslaughter.  This was a significant juncture in terms of choices being made.  I will not read in detail the discussion, though it is instructive as to the deliberativeness with which things were undertaken.

KIEFEL J:   What does this go to, Mr Walker?

MR WALKER:   It certainly goes to the discretion point upon which we rely.  Your Honours will see that in proposition 7 of our outline.  It also, in our submission, goes to the nature of the applications themselves – that is, the questions of power, to which I will be next coming.  Then after certain discussion, you will find the position of the Crown, if I may say so, extremely tentatively but, nonetheless, a position taken. 

One selected part of that is at page 207, about line 45.  Below that sentence there commencing, “I have come to the view” reads as if it were categorical.  I am bound to point out the context makes that extremely tentative overall.  Against that background, the notion of deferring the sentencing proceedings was dispelled and the sentencing then proceeded, so that the position taken by the Crown was not only obviously to leave the verdicts and the judgments respectively of acquittal and conviction in place, but to proceed to sentence for the conviction of manslaughter. 

Now the position is to set aside the judgment of acquittal, to set aside the judgment of conviction of manslaughter and it follows, of course, to set aside the sentence, so a complete reversal.  No new information intervenes between that change of position.  When we come to the applications themselves, to which I have already taken you, it is at once, in our submission, remarkable to consider what statute, if any, was being invoked by one or both of those applications.

FRENCH CJ:   The first application was an application to the trial judge, was it not?

MR WALKER:   Yes.

FRENCH CJ:   How did it get to the Full Court?

MR WALKER:   Can I take you immediately to Part 11 of the Act.  It is in Division 2. 

FRENCH CJ:   Yes. 

MR WALKER:   Part 11 is “Appellate proceedings”. Division 2 is “Reference of questions of law”. The familiar device of a reservation of questions is dealt with by section 350 and in subsection (2) the trial judge has a power to refer such a question for consideration and determination by the Full Court and one sees that that is an extremely broad power in terms of when it may be ordered:

A court by which a person has been, is being or is to be tried or sentenced for an indictable offence ‑ ‑ ‑

et cetera.  Under subsection (3) there is a reference to the possibility of requirement by the Full Court, to which I will be coming.  In subsection (4) there is specific reference to a position which applies in this case, namely a person who has been tried and acquitted, and where there is a mandatory referral, reservation, upon application by the Crown. 

One can jump ahead.  Your Honours, of course, know what the corollary of that is.  It is to be found in paragraph 351A(2)(c) in familiar form.  So the answer to the question after a mandatory reservation upon an acquittal is something that cannot invalidate or otherwise effect the acquittal.  That is enough, of course, to show that the notion of seeking to set aside an acquittal and to order a retrial on the charge of murder for which the judgment of acquittal had been entered is clearly contrary to statute unless there is this entirely different parallel stream called an inherent jurisdiction.

One sees that there is some care taken to be explicit throughout section 350 as to the personal party entitled to make application for that statutory procedure. One sees under subsection (6) a reference to the matter that the Chief Justice raised, namely, an unsuccessful application to the primary court gives rise to a right in the person who had not succeeded to make an application to the Full Court.

Under section 351, there is an obligation of a case to be stated. We never got to that. There is in the papers a draft stated case; it was only ever a draft stated case. That is what would have followed had there been a direction under section 350 by the Full Court to the trial judge. As I say, perhaps not explicitly, it is not dealt with by the Full Court. One cannot look at these provisions, of course, without also looking at Division 3. Division 3, which is subheaded “Appeals” gives the familiar ‑ ‑ ‑

FRENCH CJ:   I am sorry, before we move to Division 3, which application was before the Full Court?

MR WALKER:   Both, so far as we understand it.

FRENCH CJ:   But how did the application to the primary judge get before the Full Court.

MR WALKER:   I am sorry; I am not talking about an application to the primary judge.  There was an application to the Full Court ‑ ‑ ‑

FRENCH CJ:   I appreciate that, yes.  So that was the application?

MR WALKER:   There were two applications; one ‑ ‑ ‑

FRENCH CJ:   The one on which they decided was the application to the Full Court.

MR WALKER:   And in what I will call the inherent jurisdiction as it is there named.

FRENCH CJ:   Yes, invoking the inherent jurisdiction.

MR WALKER:   The second application I took you to was to the Full Court to direct the trial judge to reserve a question.

BELL J:   That was the 350(6) application?

MR WALKER:   Exactly, and that does not seem to have been finally dealt with in the Full Court, which is not a very large point because it seems to have been swept away by what is apparently regarded, being an inherent jurisdiction, as being more comprehensive than the powers granted. The point I make, obviously, is that insofar as subsection (6) of section 350 was being invoked in relation to an acquittal, there was the incapacity of any outcome to affect the acquittal, which probably explains why nothing happened. I hope that is an answer to the Chief Justice’s question.

FRENCH CJ:   Sorry, the application which appears at 273 was an application, first, for an order that it be referred to the Full Court?

MR WALKER:   Sorry, yes, that it itself be referred to the Full Court.

FRENCH CJ:   That is right.  Now, that order was made at some point?

MR WALKER:   Yes, your Honour, and there are ‑ ‑ ‑

FRENCH CJ:   I was just trying to track through the procedural steps, that is all.

MR WALKER:   As have we. Section 48 of the Supreme Court Act seems to have been in play in the sense that the Full Court has the jurisdiction of the court.  I do not mean this at all facetiously what I am about to say; there is not a lot in the books about precedence for the kind of application in question here.

FRENCH CJ:   No.

MR WALKER:   It does raise, obviously, a question where there is a trial recently concluded – it would also raise a question if there was a trial concluded a long time in the past as to whether the trial judge is the judge to which it is proper to make this novel inherent jurisdiction application, because the usual collegiate approach to a superior court would look askance at the notion of one single judge receiving an application about proceedings that had been completed before another single judge.  It may have been feelings – I will not say they are only of delicacy – but feelings of that kind that led to everyone assenting to this supposed jurisdiction being exercised by the Full Court.  Can I show you ‑ ‑ ‑

FRENCH CJ:   As an exercise of what we would call in the federal context “original jurisdiction”.

MR WALKER:   Exactly.  Can I show you the paperwork by which there is, as it were, an order pursuant to a provision in a statute or a rule of court to have it to the Full Court?  The answer is no.  It was in the Full Court because it was started in the Full Court.  That first paragraph is rather odd in the sense that it is asking the Full Court to exercise a power which is not apparently located in any rule for the Full Court to refer something to itself.  I think all courts in the Commonwealth – all Supreme Courts have provisions by which either a single judge or a Full Bench can transfer something in the original jurisdiction to be heard by the Full Bench.  Sometimes they are called “leapfrog applications”, but that is not this.

FRENCH CJ:   Well, you can see the distinction there.  This is headed “In the Supreme Court of South Australia Criminal Jurisdiction”, the notice of appeal is headed “Criminal Appeals Jurisdiction”. 

MR WALKER:   Yes.  Well, the documents, as I say, do not follow any precedent that can be taken from any rules.  Your Honours are familiar, of course, with the careful way in which rights of appeal, including those rights that may be exercised only with permission, are dealt with in Division 3 of Part 11 of the Act.  The first and most obvious one, the paradigm against which what was done in this case is to be measured, in our submission, is if a person is convicted.  The convicted person may appeal against the conviction.  There is no appeal by the Crown against the conviction.

Within section 352(1)(a) then comes the “with the permission”, the appeal against sentence, “the convicted person”.  It requires a conviction in order to appeal against sentence.  As your Honours know, we commenced just such an appeal.  Then, in relation to “tried on information and acquitted”, which is our case:

the Director . . . may, with the permission of the Full Court, appeal . . . 

(i)       if the trial was by judge alone; or –

not our case:

(ii)if the trial was by jury and the judge directed the jury to acquit the person –

not our case.  Then, there is the antecedent decision jurisdiction in section 352(1)(b) which was not deployed in this case.  There is nothing antecedent to trial about this.  That covers paragraph (c) as well.  In subsection (2) one has what might be called the reflective sentence appeal by the Crown in the case of a sentence appeal by a convicted person. 

That states the matter in ways which are familiar and which reflect certain historical developments and in relation to acquittal, as we know, goes only a certain way and it reflects what this Court made crystal clear in Snow to which reference is made in everyone’s submissions, namely, that it would require legislation to permit that which was unthinkable to construe from the bare language of appeal in section 73 of the Constitution as being a means by which an outcome under a trial under section 80 could be reversed if it was by an acquittal.

It is for those reasons that we put in proposition 2 that it is plain, as the majority frankly recognised in the Full Court, that what was being exercised is not derived from statute and that it must be based in something called an inherent jurisdiction.  May I, before moving to proposition 3, however, supplement something I told you earlier about the factual record?

It is to be recalled that before the Full Court there was, as you will see in volume 2 of the book, starting at page 298, a statement of agreed facts and this was before the Court for the hearing of the applications before it.  There is other material before the Court, of course, the affidavits to which I will be coming.  The references to the delivery of the verdicts, that is the occurrence in court that has been characterised as a communication or has been argued by the Crown to be in the nature of a misleading, is that which is set out in volume 2 starting at page 298, about line 40 and going over the succeeding pages to the top of page 301, about line 25.

There is, in our submission, a very explicit step‑by‑step process by which, what I will call, the apparent regularity of what was occurring in a trial where an issue, some might think the issue, was murder or manslaughter, had been argued.  So, we then come, our proposition 3, to the inherent jurisdiction.

FRENCH CJ:   At what point is judgment entered on the verdicts?

MR WALKER:   Well, after the ‑ ‑ ‑

FRENCH CJ:   Is that at 6 in the agreed facts?

MR WALKER:   It is at the combination of 6 and 7, yes, your Honour.

FRENCH CJ:   Yes.

MR WALKER:   It is what I might call “perfection” is in 16, to which reference has been made.  Now, your Honours ‑ ‑ ‑

BELL J:   Can I just inquire whether there is some provision made in relation now to the entry of orders electronically?

MR WALKER:   No, I have not found that which New South Wales decided it had better have ‑ ‑ ‑

BELL J:   Right.

MR WALKER:   ‑ ‑ ‑ applying in this case, and if I am wrong in that, that is something I have made an inquiry about but I have not thought about for a while.

FRENCH CJ:   This may be something we can be grateful for.

MR WALKER:   Yes, yes, perhaps.  My friends to the right will be able to correct me if I was wrong in that.  But, no, I have not seen anything and that is why I gather the agreed facts were as they are.

BELL J:   Yes.

MR WALKER:   It was certainly how we proceeded below.  Your Honours, so we come to this inherent jurisdiction, the nature of which has been explained by the majority as being the jurisdiction or power arising from the nature of a superior court with the function of administering justice to prevent or remedy an abuse of its process. 

As your Honours know, the unfortunate foreperson has been designated by the majority as if any one person or participant in the administration of justice in these proceedings is required to be indicated as the person who abused the process or is responsible for that state of affairs it is the foreperson. 

In our submission, that is straining the appropriate characterisation which must remain substantive for the jurisdiction to retain its rationale.  It needs to be an abuse of process to which the inherent jurisdiction – now, of course, referred to and bolstered by explicit rules as well – or else it becomes, of course, a power, the limits of which will be extremely difficult to delineate, in other words, a power to prevent or remedy abuse of process is self‑evidently salutary. 

It is satisfying to the point of appearing necessary to have it, but a power to do that which from time to time a judge considers appropriate in the circumstances of a case is, in our submission, dangerously close to the kind of statutory descriptions of jurisdiction which have never, in this Court, or, indeed, in other similar courts, been taken literally in the sense that the power to do justice is entirely unlimited and idiosyncratic.

So, for this power which is based upon a matter of substance, namely, descrying an abuse of process, it will not do, in our submission, as the majority seems to reason, to doubt whether any one person or participant in the process needs to be identifiable as a person whose conduct has brought about or constitutes the abuse in question. 

That is to expand the notion of abuse of process so as to include everything that might attract the description of miscarriage, everything, but even more broadly and dangerously, to include everything which is the result of or constitutes a mistake or error.  In our submission, at that point, the reasoning totally breaks down.  It would be, in our submission, outrageous in relation to the participants in the administration of justice to suppose that it partakes of the character of an abuse of process for one or other of us in our respective roles to make a mistake or to be wrong.

They are utterly different universes of discourse – abuse of process and error.  May an abuse of process involve an error?  Of course.  May an error be committed in the course of proceedings which are characterised by an abuse of process?  Of course, and there may actually be causal connection between the two but they could also be coincidental, but they are not, of their essence, the same thing at all.

In our submission, there is no passage in the majority’s reasoning which explains how one moves from mistake or error to abuse of process, either generally or in this case, and it is this case that matters.  It is for those reasons, in our submission, that the focus comes entirely upon the concept which informs this part of the reasoning below, namely that the Court was misled by a wrong statement on the part of the foreperson.

I am going to come to the material that was before the Court – I use that term advisedly.  As you know, only some of it was ultimately admitted as evidence.  When one comes not only to that filleted portion but to the whole from which it was taken, it is to be doubted – this is looking forward to our proposition 6 – whether it is as simple as saying there was a miscommunication.

Indeed to the contrary, we submit that what happened in the usual way, namely, very deliberate, step‑by‑step, inquiries and answers, the jury, all in the presence of each other, through the associate, in court, shows that what was said was exactly what they all wanted to be said.

KIEFEL J:   Or at least there is a presumption to that effect.  Do you rely on that?

MR WALKER:   There is certainly that.  That is put powerfully in Nanan, to which we have made reference, which in paragraph 30 in this Court’s reasons in Smith, in our submission, there is no reason to doubt its correctness and appropriateness as a statement of both a rule and a principle underlying the rule.  There is certainly the presumption which comes from that very deliberateness.  It is not an empty ritual; it is a very important part, the culmination of a criminal trial.

There is no suggestion that it was done in any sloppy or perfunctory fashion and there is no suggestion that there was any gesture ‑ we know there was no word – from any of the jurors of a kind which a careful judge might be able on occasion to detect so as to, as it were, back up and make sure that what is being said is correct.

It is for those reasons, in our submission, that this idea of misleading is just nothing more than a semantic variation on the same fallacious notion that produces a mistake ‑ and we locate the mistake in the jury room, if there is a mistake – the same fallacious reason that calls that an abuse of process is called in aid, we think, to describe the misleading as if it were something that ought be regarded as constituting the abuse of process.

It is not an abuse of process when a judge makes a misdirection.  It is not an abuse of process when counsel inadvertently misrepresents the evidence.  In both those cases, of course, there are safeguards in the system, as it happens, from the accusatorial system and from the expectation, sometimes bolstered by a rule or by appellate consequences in relation to a misdirection and, obviously, where there is misstatement of evidence the opportunity for that to be corrected, sometimes by the trial judge. 

None of that can sensibly or fairly be called an abuse of process.  Had it occurred in a case and were it supposed that it had produced what an applicant regarded as a wrong outcome, it would not, in our submission, suffice to make out the existence of an inherent jurisdiction to set aside that which had occurred, namely, the delivery of verdict, the entry of judgment and, in this case, sentencing as well on the basis that there had been an abuse of process because the judge had misled the jury or counsel had misled the jury.

That raises the question as to whether it is an abuse of process because it was the foreperson or, perhaps more fairly, the jury misleading the judge and misleading, presumably, the accused as well and in some way, utterly unexplained and not appreciated in the reasons of the Full Court as even arising from a question, somehow that being available to be an abuse whereas with the cases I have given, mistake by a judge, mistake by counsel, not being an abuse of process. 

But that, of course, would be absurd to suppose that misleading the jury, the tribunal of fact in the trial, is somehow categorically either less serious or not to be characterised as an abuse of process, whereas that tribunal misleading the judge, the judge of law in the case, would be an abuse of process.  This is, in our submission, so strained and so impossible in its ramifications that at the outset of the reasoning that placed this inherent jurisdiction upon the foundation of abuse of process it collapses.

FRENCH CJ:   So abuse of process is, in a sense, a distraction from the question of power.

MR WALKER:   Yes.

FRENCH CJ:   The question of power is whether there is a power in the court to set aside a judgment of acquittal ‑ ‑ ‑

MR WALKER:   That is right.

FRENCH CJ:   ‑ ‑ ‑ on the basis of some concern or deficiency about verdict.

MR WALKER:   That is right.

FRENCH CJ:   I suppose one question would be does it have such a power if there were no verdict?

MR WALKER:   Yes.

FRENCH CJ:   That is the territory we are into really, is it not?

MR WALKER:   Yes, is the answer to all of that.  But I have spent the time I have on abuse of process because that is how the Full Court reasons it.

FRENCH CJ:   I appreciate that.

MR WALKER:   In our submission, that goes.  It does come back then to the question – I am now up to my proposition 4 - to which of course we first move to Snow.  Snow has been not argued by the Crown here to be wrong, not overtly argued to be superseded, but your Honours could be forgiven for thinking, not least by using the word “obiter” in relation to it, but it has been argued by the Crown here as not a case which is necessary to be confronted in that part of the argument that the Chief Justice has raised with me, which is the core of the case.  In our submission, there is nothing obiter about the reasoning in question in which, for example, Sir Samuel uses the important epithet “absolute”. 

Now, it actually does not mean absolute because there are exceptions, but it is a rhetorical indication of the strength of the matter, which, as your Honours know, was the reason why the reading of section 73 proceeded as it did. There is no obiter here – that is ratio – and it is not a small part of ratio; it drives the outcome, because the breadth of the appeal – which of course is limited under section 73 to doing that which ought to have been done below – is plainly not being, as it were, generally doubted by one of its authors, Sir Samuel, but rather, the unthinkable quality of setting aside an acquittal by anything in the nature of an appeal informs the proposition that there was no jurisdiction to do that which was being sought to be done in that case.

So it is not obiter.  It could not be stronger in its statement of the principle and, in our submission, it could not be said in any sense to have been superseded by any subsequent development in this Court, or in any relevant Parliament.  No statute is pointed to in this case, and we have pointed to statutes which point the other way; a careful definition of what may occur to an acquittal in the appellate jurisdiction, not applicable in this case, and what must otherwise be observed of an acquittal, namely, that it is inviolate even where a referred question reveals that there was an error in the process that produced it. 

So that is what the statute says here.  The common law is as plain as may be in Snow, and it is for those reasons, as your Honours have seen from our written submissions, that we, with respect, embrace the concise fashion in which the Chief Justice below disposed of this argument.

I am now moving to proposition 5, with which proposition 6 is, of course, closely connected.  Concepts that divide the parties before your Honours have been labelled variously, but there is a kind of contrast or dichotomy in play.  It is the communication of something, and there are deliberations.  One could be forgiven upon first venturing into this area for wondering why it does not reveal deliberations to communicate something about them; of course, it does.

A miscommunication, that which is tendentiously described as the foreperson misleading the judge, is a label which requires to be unpacked.  One needs to know what it is it is said was performed by the act of speech in question, or revealed by the words spoken, that have meaning in the context of the present case, but are not revealing deliberations.  There is nothing here, with respect, to that effect.

Everything that the foreperson does, of course, communicates the outcome of deliberations and the inquiry necessary, it is considered apparently, in relation to the statutory majority possibility, the inquiry is, of course, an inquiry as to something to do with deliberations, voting.  But, like the traditional inquiry “And is that the verdict of you all” where unanimity is the simple test, it is by practice, enshrined as a possible inquiry – a possible and appropriate inquiry as to deliberations. 

After all, all it ensures is that that which the law requires as to the verdict of the jury in the traditional case, unanimity, in the statutorily modified possibilities, the requisite or minimum majority, all that is being prompted is advertence by the jury through their foreperson to that requirement and that was done in this case.

KIEFEL J:   Mr Walker, may I interrupt you with this question?  If you are correct in your preceding submissions and there is no basis in law for setting aside the verdict of acquittal, does the question of admissibility arise?  Is there anything to which it is relevant?

MR WALKER:   No, no, absolutely not.

KIEFEL J:   So this is an alternative basis?

MR WALKER:   This is a cascade of argument.

NETTLE J:   What about Chief Justice Kourakis’ conclusion that the manslaughter verdict should be set aside?  Would it not affect that?

MR WALKER:   It certainly affects that but on the argument that I understood Justice Kiefel was asking me about, my argument, nothing can be set aside.

NETTLE J:   Nothing can be touched.

KIEFEL J:   That was in the nature of, well, process might be put aside, the question of process but like an appeal from conviction.

MR WALKER:   Yes, can I try and attend better to Justice Nettle’s question?  There is a logical problem in framing what the Chief Justice apparently contemplates in relation to manslaughter.  The jury, and here I am frankly intruding onto the territory where – covered by their affidavits – the jury obviously understood that unless it was acquittal on both counts, the consideration was what I will call a movement from consideration of murder to consideration of manslaughter.  I have put that generally because of the niceties that may have been overlooked by them, in that special sense, murder or manslaughter alternatives. 

If you cannot set aside the acquittal then, in our submission, the notion of an inherent jurisdiction has to be confronted in relation to the manslaughter conviction – has to be confronted as one which is available to the Crown because otherwise the statute says quite plainly, we can appeal against manslaughter and of the people at the Bar table, we did not, we did not – we wished and wished to maintain the conviction of manslaughter.  There is an utterly odd reversal of stance in this case from what might ordinarily be expected.

The Crown - we are not sure about to what extent this is seriously argued specifically for Mr Zefi - might be seen to be in a position of trying to obtain what the statute denies them, that is, setting aside a conviction.   Now, what is not possible to rationalise is how one would have a differential approach to the use of material depending upon whether it was an acquittal or a conviction in question.  The Chief Justice does not offer a rationale as to why it would be treated differently.

In our respectful submission, the Chief Justice is basically correct in all his reasoning concerning why the acquittal could not be attacked at all.  However, in our submission, none of the judges has properly captured what ought to have been the approach to the so‑called evidence and, in our submission, the threshold question, and this may affect the question of how could this possibly be used to set aside manslaughter, the threshold question was whether any of the material, apart from that which is appropriately implied in open court of the foreperson, by the standard questions which of course goes to a degree to deliberation, but only to the degree that is sanctioned by practice, whether anything else could ever had been entertained for any purpose, including doubting the conviction and, in our submission, the answer in principle, is as plain as one can imagine as a matter of authority and this is an area where a necessary virtue of the law is clarity, bright line, with exceptions that can be justified in the way that your Honours have seen it in the history.

Thus, for example, yes, there can be evidence concerning the lack of qualification of a juror where the law requires a certain qualification - that goes to the proper constitution of the tribunal of fact.  But as to fundamental errors, now let me catalogue some of the more evocative - mistaking the onus of proof sounds elementary but obviously happens; mistaking the standard of proof, being less than faithful to the admonition to attend only to the evidence and defying the admonition to give no regard to irrelevant consideration such as the colour of the accused’s skin.

GORDON J:   The things that Nanan describes - misapprehensions, as part of the jury’s deliberation.

MR WALKER:   Exactly, and they may be grave mistakes and fundamental to the whole process.

GORDON J:   Do you say that is what is set out in the affidavits?

MR WALKER:   It is very, very difficult to know what is set out in the affidavits.  We certainly say that fairly understood and leaving ambiguous that which is ambiguous, the court should not construe, as it were, to a single correct meaning, those affidavits.  Observing and giving weight to the ambiguity as ambiguity, in our submission, they are redolent of misapprehension, in the sense that that word has been used in the authorities.  It is riddled with error and it is not a simple error, and it does not go in one simple direction and it is not consistent and in a sense, why would one be surprised about that.

In our submission, the pragmatic virtue of the rule as a clear rule can be seen, among other ways, to rest in the fact that no one knows, except the jurors, just how they proceeded and if they were terribly mistaken, obviously, in God’s mercy, they will not have known that.  So they will not be talking about them having done things in a terribly mistaken way and we will not know. 

In our submission – and here comes the jurisprudential deep breath because there are two really opposite directions to be taken – a good thing, too, or, at least, that is what the law says because, in our submission, you can have too much of a good thing, namely, the search for perfect procedure and complete justice.

FRENCH CJ:   Well, the question of power to set aside a judgment of acquittal might be answered by saying there is no such power under any circumstances.  Then one might say there is such a power under certain circumstances ‑ ‑ ‑

MR WALKER:   Yes.

FRENCH CJ:   ‑ ‑ ‑ fraud and intimidation.

MR WALKER:   Yes.

FRENCH CJ:   The circumstances which might enliven such a power may be informed also by the rules about what you inquire into.

MR WALKER:   Yes.

FRENCH CJ:   So, in a sense, the practice feeds back into the scope of the power, I suppose.

MR WALKER:   Very much so, and that has given rise to this other pair of concepts – extraneous and deliberation.  So there is communication deliberation and there is extraneous and communication - and deliberation.  In the cases that the Chief Justice has just raised with me – intimidation, fraud, et cetera – those are going to be extraneous matters in the main, extraneous, not in the sense that it involves only non‑jurors – very often it will involve jurors – very often, but extraneous in the sense that it is not the deliberation.

We do not have to, in this case, venture into the difficult area of when, what might be called robust debate during deliberation, becomes either criminal or at least unlawful intimidation.  Obviously that is a question that should await the day.  Meantime, in our submission, the notion that there is no restriction which prevented the court from entertaining the material in this case is one which, in our submission, ought not to be entertained. 

Of course, there is a restriction.  We do not think, with respect, that their Honours below saw no restriction, that is, said this was an area of complete availability.  It would appear that for what happened – I do not know whether it is unprecedented but it is certainly unusual – it would appear that it was treated as if it was it was the subject matter of, I will call it evidence, in the ordinary way.  I do not mean that this questionnaire or its administration is a model of the way in which witnesses should be proofed – to the contrary, it is extremely problematic.  But then they were verified by affidavit and, as it were, the affidavits tendered, although only part admitted, it turns out. 

Now, in our submission, that required an opposite approach by the court below.  There should have first been an inquiry as to how this material is admissible, given the rule approved by this Court in Smith, by citation of Commonwealth authority including, most obviously, Nanan, to which we have made reference.

Now, I really do not want to take your Honours to it but can I emphasise the vehemence with which or, I should say, the clarity with which Lord Goff, for the Committee, points out that there may be extremely grave departures from what a criminal trial requires that could be revealed by evidence of our deliberations.

One has to recall just what an extreme position Nanan is itself – convicted of murder, sentenced to death, revelation apparently not contested factually but that occurred on an 8:4 vote, which is not permissible.  That was regarded as something which could not be known and, being known, could not be used.

In our submission, that last observation brings me to the last point I want to make about our proposition 5 and that is this.  This could not surely be a matter of principle that depends upon what might be called “what falls of the back of the truck”.  In other words, the principle surely is not different depending upon whether somebody tries by subpoena or the like to obtain information, that is, everything in the open, or does it by the illicit means that might, for example – might be a breach of statutory provisions concerning soliciting information from jurors.

Whether it be a breach of such provisions or not, it is unthinkable, in our submission, that we would have as our common law on the matter a principle which says you should not get this material at all but, if you do, you may use it, because that would be a so‑called principle or a perverse rule that would obviously encourage those things to be done which otherwise Parliament seeks to control and which the rule – see Nanan – says ought not to be disclosed.

To be fair, none of the judges below, as we read them, go so far, but we raise it because, in our submission, there is perhaps the germ of the suggestion in the Crown’s argument against us in this Court that there is this material and we should, as it were, use it for what it is worth.  So I come now to proposition ‑ ‑ ‑

GORDON J:   Is that anything more than saying, though, consistent with your earlier propositions, that the procedure adopted was strange and once the procedure is infected, it infected the result?

MR WALKER:   No, it is not saying more than that in that that really encompasses the whole of this case.  From the very beginning – that is, the foreperson coming back up the steps of the court house – everything went wrong, in our submission, everything.

BELL J:   Including in circumstances in which the jury had dispersed and the foreperson is not suggesting impropriety of the sort considered in Smith ‑ ‑ ‑

MR WALKER:   Exactly.

BELL J:   ‑ ‑ ‑ to inquire of the jury, when one considers embarrassment to the administration of justice, it might lie in the obtaining of information in the way it was done.

MR WALKER:   Yes, very much so.  That is why we say they should not have been asked at all.  This is not a coercion case, it is not an intimidation case, it is not a forgery case, it is not a suborning case; none of the things which are in the catalogue of obviously non‑exhaustive exceptions.  When I call them “non‑exhaustive”, that is just because it is thought that human perfidy is incapable of describing, but all of the exceptions are exceptions which do not have to do with, in fact, designedly do not have to do with jurors getting it wrong, being muddled, being inattentive.

BELL J:   Just on a procedural matter, on behalf of your client objection was taken to any of this material being before the court, but in the event that it was you contended that the whole of it should be received.

MR WALKER:   Yes.

BELL J:   Was there, in fact, a ruling on that?

MR WALKER:   Yes, there was a ruling that said only part of the answer to question 5 goes in.

GORDON J:   Does that itself reflect a misunderstanding of, in a sense, what the material went to?

MR WALKER:   Yes, and what process was the Full Court involved in, what was it doing in looking at this material at all.

GORDON J:   Once you excise out question 5 you have a very different set of factual material before you.

MR WALKER:   Yes.  The idea of excising or isolating the answer to question 5 is, in our submission, when you look at all the questions, utterly impossible to achieve with anything that might be called fairness.  That is, if you are going to understand what that particular juror did or thought he or she was doing and, in particular, how that juror came to be acquiescing, producing the presumption from what happened in open court, then you have to look at everything. 

Now, as it happens, 1, 3, 5 and 7 - I do not know why they are just the even numbers, I am not saying the others are not important - but to look, for example at 5 and not look at 1 is absurd and then the follow up in 7 – now, as I say, they are not good interrogatories in any sense but they were fundamentally misconceived as to being embarked upon at all.  So, I do not want to take much time on what is very much, I think, a second fall‑back argument that none of this should have gone in but if all of it goes in you should have looked at what it says ‑ ‑ ‑

GORDON J:   It is not just a question about going - it is a question of looking at it all and then characterising it properly on the assumption that you are entitled to look at it.

MR WALKER:   Yes, your Honours appreciate, as it were, how unwillingly we embark upon this at all because we have an argument.  We have presented it in our written submission.  I will try to be very brief in address.  We have an argument that very well, if you look at all this material, there is absolutely no miscommunication here at all.  What was announced was what they intended.  That is, to put it, as it were, in a coloured way against myself, yes, they meant to mislead the judge about having reached the requisite majority on acquittal because they were all happy with acquittal of murder so they could move to manslaughter.  That is what they wanted to do. 

What I have just said is, I hasten to say, not intended to be a slur on any of the jurors but if you had to put it at its most dire what their evidence shows is none of us thought that we had been through the requisite test for majority not guilty as opposed to not unanimity on guilty.  That was the confusion.  None of them says that.  So, in other words, apparently they knew they did not do that. 

Now, the questions asked by the associate as required by the trial process plainly focus on just that.  I lost the count.  I think it is about three or four of them in ways that are disappointing say that they thought that was confusing and express sympathy with the foreperson, et cetera.

Whatever comment may or may not be appropriate to say about that position, it is utterly at odds with the idea that what was said was not in accordance with what they wanted said.  It turns out it was not in accordance with what the judge had, as it were, directed they should be doing, but that is different.  Disobedience of a direction is, of course, very often accidental, and whether it be accidental or wilful it is within the deliberations which obviously is within the preclusive rule in terms of evidence. 

If you look, for example, in volume 2, page 307 – this is the foreperson – and at line 35, the point is:

however we did not have a majority verdict of not guilty.

So, they did not have a unanimous verdict of guilty.  Quite plainly, there has been an elision of that distinction in what the jury then went on to do.  If you go then to the affidavits in turn – picking up page 312, just going to the questionnaires – question 1, just the first one, is a type that makes good what we have been saying about what is to be gathered from this material:

No, as a jury we agreed on Manslaughter for all four –

which, of course, is what happened.  Question 2 is a little lowering for those of us who try to ensure clarity in the conduct of a trial; question 3, ditto; question 4, the same; question 5, which uses this unfortunate word “correct”, whether verdict was correct, plainly says it was correct for manslaughter.  It repeats in a formula – as I say, this is not the ideal way to proof people:

No, there was not a majority Not Guilty verdict -

Then, for reasons which are troubling, to speculate in terms of justification, question 6 asks for the actual votes.  Question 7 describes the “not guilty” to murder as “not correct” in a passage that concludes thus:

The intention of the jury was a guilty verdict for manslaughter –

There is no suggestion it was thought you could be guilty of both, and so, in a lay sense, if guilty of manslaughter, not guilty of murder.  That is an obvious way of reading that.  One sees that the repentance of that juror is not in order to go back and consider murder as guilty, but:

to make sure all four accused received the manslaughter verdicts correctly.

As I say, you cannot actually work out that means, but it certainly does not suggest that one would be attacking the conviction of manslaughter as something which was vitiated by a lack of support by the jury for it.

Page 321, the answer to question 1 really, surely, in a case about so‑called communication, could not have been left out of account.  I will pass over all those depressing answers 2, 3 and 4.  One finds a kind of formulaic sameness to the answers to question 5.  Question 7, on page 324, bears the error frankly revealed in the second sentence, that is the error - if that be an error, that is the error.  In our submission, what that amounts to is as that juror had said, what the foreman said is accurate.  Can that be fully intellectually justified?  Is the juror a good criminal lawyer?  No, no.

Your Honours, we have written about this in our submissions.  I will not go through all of them.  There is not consistency, but there is a predominance of satisfaction with what was said and revelation, sometimes one might be forgiven for thinking unconscious rather than deliberate, of this elision between not unanimous for guilty of murder and the requisite stage having been reached to move on to consider manslaughter.

Your Honours, I have really said what I wanted to say in amplification of our written submissions about discretion, our proposition 7.  I just want to add this.  We think that which mostly divides the parties on that is whether there is a discretion at all.  If this were an inherent jurisdiction without a discretion, then one thing that has to be confronted is whether that means that however long it takes a juror to reveal something went wrong in the jury room, 20 years, say, must the court entertain the application?  Must the court admit the evidence and must the court set aside a verdict? 

If there is anything truly in the proposition that there is no discretion, that is, ex debito justitiae, then subject only to a limitations period – and

there is none; Parliament, I think, has never thought of this – then it must be entertained.  I picked 20 years because it is appalling to consider in relation to sentences, for a start, or if somebody has not been sentenced, that is, acquittal is in question – about 20 years without the proper thing having happened - you can pick other periods - in our submission, the Crown does not explain why this would not be, if it were an inherent jurisdiction, in relation to abuse of process, why it would not be, if you will forgive the expression, inherently discretionary – that is, there will be balances to be struck according to the circumstances of the particular case, including not just the lapse of time but delay.  For example, here there is delay.  The jury scatters and all those days pass before any of us even know anything about it.

In our submission, for those reasons – and this, I think, is about my fourth fall back – even if there were anything in any of this, there was a discretion which really could only have been exercised one way and that was against what happened.  Proposition 8, I do not want to add to in address.  Your Honours have seen the exchange, which includes something in the nature of a concession about costs.  May it please the Court.

FRENCH CJ:   Yes, thank you, Mr Walker.  Mr Holdenson.

MR HOLDENSON:   A little earlier today we provided to the Court crier our outline of oral propositions.  They are three pages in length. 

FRENCH CJ:   Yes, Mr Holdenson.

MR HOLDENSON:   Your Honours will have observed that we take the points in a slightly different order, indeed, the reverse order from that taken by Mr Walker on behalf of the appellant, Zefi.  We start with what are for us grounds 1 and 2 which concern the evidence of the former jurors.  It is our primary submission that the evidence submitted in the court below from the former jurors was not admissible.  Indeed, the entirety of their evidence, and indeed it was just the subject of discussion by Mr Walker, was inadmissible.

We set out in paragraph 1 of the outline of oral propositions what we say, by way of submission, is the fundamental rule with respect to admissibility and if I might speak to what I have set out in paragraph 1.  Where a verdict has been given by a jury in the sight and hearing of the entire jury, without any expression of dissent having been given by any member of the jury, and the verdict has been accepted by the trial judge and recorded, it does not get to be recorded if it has not been first accepted, and the jury has then been both discharged by the trial judge and then dispersed, the court, or indeed no court will thereafter receive evidence from a member or any members of the jury that he or she or they - two things - did not in fact agree with the verdict given or that his or her or their apparent agreement with the verdict resulted from some misapprehension on his or her or their part.

Mr Walker gave some examples of misapprehension.  The obvious one is not applying the law in accordance with the directions given by the trial judge within his or her summing‑up, or putting that another way, in some way misapplying the law, the subject of the judge’s directions. 

Now, within both our annotated submissions and in our reply, we have cited literally numerous authorities going back some 250 years which support that rule and we have identified in paragraph 1 of our outline of oral propositions, what might be said to be the four leading cases:  the case of Nanan, the decision of the Privy Council; Head, the decision of the Supreme Court of Canada; Biggs, the decision of the Full Court of the Supreme Court of Western Australia and the decision of Tawhiti, the decision of the Court of Appeal in New Zealand.

That rule, as we have set it out in paragraph 1, and as I have articulated it this morning, was engaged in the circumstances of this case.  Each and every member of the jury was present when the verdicts were returned.  Each and every member heard those verdicts being returned.  There was no dissent expressed by any member of the jury and so what follows from that is that the verdicts which were returned reflected that which was intended to be communicated by the foreperson of the jury on behalf of the jury.

That is why the characterisation, or should I say the correct characterisation of what occurred here if one receives or looks at the evidence from the former jurors and takes a certain view as to its content, the correct characterisation of what occurred here is that there has been the communication of an erroneous verdict – that is if one looks at it – the communication of a verdict which was reached, consequent upon a misapplication of some of the directions given by the judge.

It was not a case of an erroneous communication of a verdict.  That is why each of those four, what I have described as the leading cases, is important in the context of this case because each of them concerned the communication of an erroneous verdict.  There was some misapprehension by the jury as to the law. 

In Nanan, this misapprehension concerned the requirement of unanimity – unanimity was required.  The only thing is there was a majority of 8:4 and so what occurred was the day after the verdicts were returned, the next day, so it is post‑discharge, post‑dispersal, four jurors reported that the verdict was a majority verdict of 8:4, rather than the unanimous verdict. 

I am not sure if your Honours want me to go to the cases – there is probably no need to go to the cases – but one can identify the relevant passages.  Indeed, we have identified the passages, both in our annotated submissions and, of course, in paragraph 1 of the outline of oral propositions.  The misapprehension concerned the requirement of unanimity – as a consequence evidence wholly inadmissible, not to be received. 

I could go through the other three cases as well.  In fact, Biggs is almost on all‑fours with this case except in that case it was about 10 minutes.  Here, it is three hours – 2.34, I think it was, the jury dispersed.  The foreman does not get to say anything to any officer of the court until after 5 o’clock and we know what the result in Biggs. 

We have cited, as I said a few moments ago in what I said orally, we have cited cases going back 250 years and there is not one case that cuts across any of what I have said.  Post‑discharge, post‑dispersal, the evidence is simply wholly inadmissible and that is the end of it.  The evidence does not go in.  It does not matter the purpose.  It does not matter the nature of the jurisdiction invoked.  The evidence is wholly inadmissible.

FRENCH CJ:   It is inadmissible because the court does not have the power to undertake that inquiry – it goes to the question of the power of the court -that is the anterior question, is it not?

MR HOLDENSON:   Yes, it is an exercise in futility to receive it, hence the evidence is inadmissible.  The verdict cannot be altered or amended or, for want of a better expression, corrected in any way, post‑dispersal.

KIEFEL J:   The evidence is totally irrelevant on your argument.

MR HOLDENSON:   Correct.  It can achieve nothing.  There is no purpose in it being admitted.  It is wholly irrelevant for all purposes, hence inadmissibility.  But if, your Honours - and we follow on from our fundamental rule in paragraph 1 with some consequential matters to which I have spoken in paragraphs 2 and 3 - the Court be against us on that we move on to that which was the subject of consideration by this Court in the case of Smith v Western Australia.

That is, in any event, what one sees in that affidavit material – so this is - perhaps we should have preceded this with “Further and in the alternative” or “Further in any event” – so I am speaking to paragraph 4.  The content of that affidavit material goes to that which was the subject of deliberations or non‑deliberations.  It goes to the substance of the deliberative process not the sort of evidence which was considered by this Court in that case of Smith v Western Australia - assault, intimidation, criminal conduct, tortious conduct, whatever it be, but it was extrinsic to the deliberations and albeit it was recognised in that court, sometimes it is difficult to determine which side of the line the material falls. 

In this case, the content of that material is what we did in the jury room, what we discussed, what we talked about, what we decided with respect to the verdicts.  So we say, in any event, on that lesser basis again the evidence cannot be received. 

Paragraph 5, there is the Latin tag, it comes through in quite a number of the cases and, indeed, those cases have been identified - functus officio, too late, jury cannot be reconvened, no alteration.  Indeed, if one thinks about it, albeit I know Mr Walker spoke about, I think he used the number 20 years, as we say at the end of paragraph 5, to allow otherwise these things – jury verdicts all of a sudden become provisional and that is just not on in our submission and as to functus officio, we have cited some of the cases there but there are more set out within the footnotes in our reply.  So, unless someone wanted me to go to specific passages in some of those cases, that is what we say about the admissibility of the evidence.  It is wholly inadmissible.

If I could then move on to the next ground, for us, it is ground number (iii) and it is about the inherent jurisdiction of the court.  The judgment of the trial court was entered into the court’s records, and thereby to use the language within the cases “thereby perfected”.  What we have done in paragraph 7 of that outline of oral propositions is set out what the record showed on 7 October which was post‑sentence. 

The record with respect to the appellant, Jakaj, is set out in volume 1 of the appeal book at 197 – it is on the page – and it showed that the appellant Jakaj on that date was acquitted on the charge of murder, convicted on the alternative charge of manslaughter and sentenced to a term of imprisonment, it is there specified, on that alternative charge of manslaughter and the document is signed by, as I recall, not only the learned trial judge but the Clerk of Arraigns.

Your Honours asked the question of Mr Walker concerning electronic recording or electronic documentation.  There is a reference to this in the judgment of the Chief Justice in the court below in volume 2 at page 445, paragraph 68 in the middle of the page, where Chief Justice Kourakis said:

The information contained in the Court’s Record of Proceedings has been entered into the Court’s computer records.

Then reference is made in the next sentence to what I have just described:

7 October 2014, a Report of a Prisoner Tried was created and printed -

I can tell your Honours something about the Court’s record of proceedings.  Each step along the way – and this was in evidence below – the judge’s associate fills out a document called the “Court’s Record of Proceedings”.  Down the bottom right‑hand corner it says “E-lodged” and underneath that there is a date and a time.

From that, and someone from South Australia might be able to assist me, the judge’s associate electronically lodges the court’s record of proceedings step by step.  There was one on 22 October, the date the verdicts were returned.  There was another one on 2 October, which was the date of the pleas.  Then of course 7 October.  At the end of the day, there is this document - “Report of Prisoners Tried” - and it is in volume 1 of the appeal book at 197.

BELL J:   The Clerk of Arraigns enters a record on the back of the information of the verdict – is that so?

MR HOLDENSON:   That is so in Victoria but I do not have a copy of a marking from the indictment, called an information in South Australia, here, but that happens in Victoria. 

BELL J:   Mr Kimber might tell us.

MR HOLDENSON:   So the effect of what I have said in paragraph 7 concerning the entry into the court’s records and the perfection thereof is that at least at that date, 7 October, if not much earlier, the court’s power to reconsider the case ‑ “reconsider” means reopen and reconsider some order made in it – had come to an end. 

Your Honours will see in that regard in paragraph 6 we have cited the two most recent decisions of this Court concerning reopening – Burrell and Achurch.  So the court below, in our submission, was simply not empowered to reopen that judgment on the respondent’s application, which was filed more than three months later, on 16 January. 

There is an importance, of course, which comes through in the authorities with respect to there being an end date or an endpoint in time.  We have identified it in paragraph 8.  There is a public interest in the finality of criminal proceedings with respect to the court completing or concluding its task of determining criminal responsibility or criminal liability on the information.  Uncertainty would inevitably be the consequence should this be revisited and, indeed, one finds in cases such as Burrell and Achurch reference to the uncertainty.

Of course, we have in paragraph 9 of that outline of oral propositions further – in any event, we say that there is an applicable and, indeed, absolutely fundamental common law principle which operates so as to render the respondent’s application which was brought below to be nothing other than an exercise in futility. 

What we have set out in paragraph 9 is that fundamental principle - a verdict of acquittal returned by a jury on indictment – read information for the State of South Australia – in a criminal trial conducted by a competent court is final and conclusive on the issue which the jury are sworn to try, that issue being guilty or not guilty of the offence or offences charged, whether or not the verdict of not guilty is tainted by irregularity or mistake.

Now, “irregularity or mistake” is some of the expressions used within one of the judgments in the old case of Snow.  The verdict is not amenable to and, indeed, is fully immune from any challenge.  Mr Walker, of course, referred to the case of R v Snow (1915) 20 CLR 315. In that case, there was a trial on information conducted in the Supreme Court of South Australia for an indictable offence, an indictable offence contrary to a Commonwealth statute. The trial was, of course, conducted by judge and jury, and during the course of the trial, the trial judge acceded to the submission of “no case to answer” which was made by defence counsel. Having acceded to that submission, the trial judge directed the jury to acquit, and the jury thereby returned a verdict of not guilty.

Hence, the application to this Court, an application for special leave to appeal – the basis upon which it was brought is interesting.  If one reads the judgment of Chief Justice Griffith at page 321 of the report, it was an application for special leave to appeal from a judgment of the Supreme Court of South Australia, the judgment being the discharge of the then respondent, Snow, from custody upon the verdict of not guilty, and the object of the application of course being to set aside the jury verdict of not guilty and obtain a new trial.

In each of the five judgments, what we have set out in paragraph 9 and said to be the fundamental principle of the common law is there recorded.  We have identified some of the pages there:  the joint judgment of Justice Gavan Duffy and Justice Rich at 363 to 364.  Perhaps I should take the Court to them.  At 363 to 364, at about point 2 on the page, about 10 lines down from the head of the page, 363:

It is a well established rule of the common law in England, and, as we believe, in every political community existing under the British Crown, that, though new trials may in certain circumstances be ordered where a verdict has passed for the Crown, a verdict of “not guilty” given by a jury on a sufficient indictment in a purely criminal trial conducted by a competent Court is final.

If one reads the next few sentences one sees reference to that proposition holding whether or not there has been a misdirection, whether the verdict is tainted by irregularity or mistake – and that is the place from which we drew the language in our paragraph 9 – and, at the very foot of the page, 363 in that joint judgment, four lines from the foot of the page:

there has been no sustained attempt to interfere in any way with a verdict of “not guilty” in such cases –

Over to the head of the next page:

the Courts resisted every attack –

This is making reference to 300 years of authority:

on the inviolability of the verdict of “not guilty,” and that inviolability has remained part of the substantive law to the present day.

Jumping a few lines, reference is made to “the practice of the Courts at Westminster”.  Then one sees cited the case of Bertrand, the decision of the Privy Council – I will come to that in a few minutes – and, indeed, there is a lengthy quote from that decision of Bertrand.  Chief Justice Griffith spoke in a similar manner at 321, at about point 8 on the page, 10 lines from the foot of the page:

It is not suggested that at the establishment of the Commonwealth a new trial could be granted after an acquittal under the laws of South Australia or of any of the Australian Colonies, but it is contended that the High Court can grant it.

Then over to 322, at about point 7 on the page:

The common law doctrine as to the effect of a verdict of acquittal is too well settled to require exposition, and it is too late to inquire into its origin. If it had been intended by the framers of the Constitution to abrogate that doctrine in Australia, and to confer upon the High Court a new authority, such as had never been exercised under the British system of jurisprudence by any Court of either original or appellate jurisdiction, it might have been anticipated that so revolutionary a change would have been expressed in the clearest language.

I could go on at the judgment.  I will just cite the passages.  The judgment of his Honour Justice Powers, the very middle of 369 ‑ ‑ ‑

FRENCH CJ:   I think we are pretty well across them.

MR HOLDENSON: Yes, 369 and 370 – Justice Isaacs at 334, point 8 and Justice Higgins at 353, point 8 to 354, point 2. As we know, of course, moving on and, indeed, we have set this out in paragraph 10 of our outline of oral propositions, at the time of Federation, the Supreme Court of South Australia had the powers of the courts of Westminster. I say the present reflection of that is in section 17(2)(a) of the Supreme Court Act (SA) but, as was identified by Chief Justice Kourakis in the court below, the relevant provision at the time of Federation was section 7 of the Supreme Court Act 1855 and 1856.

So one looks to what the powers of the English courts were at that time.  We have set out, under paragraph 10, the cases in that regard.  But as reflected in the judgments in Snow, the powers of the English courts never extended to, nor permitted, the setting aside of a verdict - just pausing there, a verdict – either conviction or acquittal that had been returned by a jury in a criminal trial and directing that a new trial be conducted. 

Bertrand – the decision of the Privy Council – and your Honours will recall there was a lengthy passage from the judgment in Bertrand set out in one of the judgments in Snow - that was a decision of the Privy Council on appeal from the Supreme Court of New South Wales where the Supreme Court of New South Wales had granted a new trial in a case of felony where a jury had convicted.  The Privy Council held – at the pages we have identified under paragraph 10 – that the Supreme Court did not have that power.

The case of Whelan, a Victorian decision reported, as we have set out there - in the judgment of the report of the judgment of Sir Redmond Barry, at page 21 it is accepted that subject to statute, he said, the court could not grant a new trial in felonies.  There is the case of Murphy, another decision of the Privy Council.  They are in chronological order ‑ ‑ ‑

FRENCH CJ:   I think we have visited the history of the development of the criminal appeals process.

MR HOLDENSON:   Yes. 

FRENCH CJ:   Cases like LK, and so forth.  

MR HOLDENSON:   Yes.

FRENCH CJ:   I do not know that we need to ‑ ‑ ‑

MR HOLDENSON:   Well, could I just draw attention – or just to say where we go with this.  Duncan was an acquittal case.  There are other authorities.  Indeed, Chief Justice Kourakis identified the case of Bear 1697 which was a case where an acquittal had been returned on indictment – that is the subject of several paragraphs in the judgment of Chief Justice Kourakis.  Indeed, one notes at the head of page 319 in Snow that that case of Bear was cited in argument.  It is at the head of page 319.  The proposition put in submissions by counsel was:

In England a new trial has never granted after a verdict of acquittal.

Just back on Snow for a moment – Snow concerned, among other things – not just section 73 of the Constitution, but section 80 of the Constitution. Your Honours will recall that section 80 provides that:

“the trial on indictment of any offence against any law of the Commonwealth shall be by jury.”

That phrase “shall be by jury” was held in Snow in several passages to which I have not yet taken the Court to be a reference to trial by jury as that institution was known at the time of Federation, a proposition also recognised, as we have set out in paragraph 11, in Cheatle, at the pages there identified. 

In the pages there identified from the case of Snow, the judgment of Chief Justice Griffith at 323 and the joint judgment at 365, reference is made to one of the benefits of trial by jury, that being a verdict of acquittal is “final and conclusive” and, as I recall the language, it is given at page 323 in the judgment of Chief Justice Griffith, the description of “absolute protection”. The phrase used by Chief Justice Griffith:

absolute protection afforded by a verdict of not guilty under the common law of all the States.

The effect of that – and there is a similar passage at 365 in the joint judgment – in our submission is this. In circumstances where section 6(1) of the Juries Act (SA) uses the same language it, too, provides that criminal trials in the Supreme Court are to be by jury then subject to statute a verdict of acquittal in such a trial is to be accorded precisely the same protection being wholly immune from any challenge howsoever that challenge be brought.

In those circumstances, we say two things reverting back to grounds 1 and 2 and the inadmissibility of the evidence, the purpose for which the present respondent sought to have that evidence admitted was to have the verdict of acquittal on the charge of murder set aside in circumstances where, by reference to the cases we have cited in paragraphs 9, 10 and 11 there, that cannot happen no matter what jurisdiction is invoked, then the evidence is inadmissible but even if it be admitted it cannot achieve anything, the application is to be refused. 

Now, the way in which this was put against us in the court below was, as we have set out in the last few paragraphs, all said to be an abuse of process.  At best, what we have here, in our submission, is we have a mistake, a mistake by a component of the court, namely the jury.  When one has regard to all the authorities on abuse of process - and it might be said in modern times they commenced in this Court in 1989 with the case of Jago but there has been plenty in this Court since then - not one of those authorities has ever suggested, either expressly or by implication, that a mistake made by the court results in an abuse of process.  In circumstances where no party or non‑party has invoked the court’s process for impermissible purpose ‑ ‑ ‑

FRENCH CJ:   I must say, speaking for myself, Mr Holdenson, it seems to me that an abuse of process is a bit of a distraction.  This is a case about power.  I know it was relied upon ‑ ‑ ‑

MR HOLDENSON:   I will move on.  The Crown also speak in terms of the integrity of the court’s processes.  When one reads the authorities in recent years which follow on, of course, from the case of Kable, integrity of court’s processes is about the existence and independence of the court – existence and appearance of independence, impartiality ‑ ‑ ‑

FRENCH CJ:   That is all to do with limits on legislative power affecting those things - I do not ‑ ‑ ‑

MR HOLDENSON:   But the reasoning goes to how it is there is an impact upon the court’s integrity.  We say none of that arises here.  With respect to the residual discretion, we simply rely upon what we have said in our annotated submissions.  We do, however, make the point that with respect to the residual discretion, the burden is, of course, upon the Crown or, should I say, the Director. 

If I could just identify one of the matters of particular significance that we have set out in our annotated submissions with respect to the

residual discretion, it has been made clear by this Court on a number of occasions that this Court will not, except in the truly exceptional case, revisit an acquittal that has been entered on appeal by an intermediate appellate court. 

The first authority to make that absolutely crystal clear was, I think, the case of Benz, albeit Benz referred to some cases which were actually consequential applications of the case of Snow.  But this Court made it expressly clear in Benz that it is only in a truly exceptional case that this Court will revisit an acquittal entered by an intermediate appellate court.

Well, what we say is, in a case such as this, it is even more truly exceptional for the applicant Crown to have revisited a jury verdict of acquittal.  In any event, we rely upon those matters set out in our annotated submissions with respect to the residual discretion, if it gets that far.

FRENCH CJ:   Thank you very much, Mr Holdenson.  Mr Henchliffe.

MR HENCHLIFFE:   May it please the Court.  I can be much briefer than my learned friends in view of their exposition of the issues and I intend to be so.  Your Honours, the appellant, Stakaj, adopts the submissions of the other appellants in relation to the issue of the jurisdiction of the Supreme Court to set aside the verdict of guilty in this case and I will not go on to repeat them.

In our submission, the Supreme Court did not have authority or jurisdiction to set aside the perfected judgment of acquittal in this case and indeed, as my friends have indicated, there is abundant authority to support that proposition.  The authority that is most widely relied upon has been the case of R v Snow. 

However, the authority of this Court applying in R v Snow and upholding its correct - there have been further cases in this Court upholding the authority of R v Snow and in particular I refer to R v Weaver, R v Wilkes and Davern v Messel (1984) 155 CLR 21 and in the latter case Chief Justice Gibbs had to say that one part of the common law rule against double jeopardy is the rule that an acquittal is final and similarly Justices Mason and Brennan said an acquittal by jury “has been traditionally regarded as inviolate”. Justice Murphy also was in that case, and in perhaps more colourful language said:

the finality of an acquittal is the keystone of personal freedom –

That was the level of importance that the Judges placed on the common law principle.  In our submission, the majority in this case have not correctly valued that principle and its continuing relevance to today. 

If I could take your Honours just to one aspect of the reasoning of the majority which appears in appeal book 2, page 472, and I hope to illustrate the circularity of the reasoning that was employed by the majority to find the authority and jurisdiction to do what they did.

KIEFEL J:    Which paragraph, Mr Henchliffe?

MR HENCHLIFFE:   Paragraph 159, your Honour.

KIEFEL J:   Thank you.

MR HENCHLIFFE:   The majority concluded that section 57 of the Juries Act had not been complied with.  We assume that to be the case for the moment, but they then said that means that:

the orders of the Court have not been arrived at by due process -.

That would be so if section 57 had not been complied with we accept. They then say:

This is not a case of reviewing a decision in which the orders have been finalised and perfected.

With respect, it was exactly that.  That was what the Crown had asked the court to do and that is what it did.  The way in which the majority sought to say that that was not the case was to say that it was not the case because there had been no valid verdict and they used the same reasoning in paragraph 164 over the page to say there is no issue of the defendants having received the full benefit of jury acquittals, relying on this authority of R v Snow.  That is not to the point because there have been no valid acquittals.

With respect, that reasoning is entirely circular.  By concluding that there had been no valid acquittal, they then said well, that then means we do not have to look at R v Snow because that only applies if there is a valid acquittal.  But the antecedent issue was whether they could look at the issue at all to question the validity, which was plain on its face, of the records of the Supreme Court.

In my submission, that process of reasoning by which they sought to sidestep the effect of R v Snow was invalid because if it was correct, how could an acquittal be fundamental, how could it be final and conclusive?  It would be always subject to being said to be invalid and then its finality would be set at nought.

So in our submission the majority simply did not recognise the fundamental nature of the authority of R v Snow and, indeed, the cases that have followed it in this Court.  In our submission, the case at Bar did not involve an abuse of process or anything akin to one. 

We agree with the submissions of Mr Walker for the appellant, Zefi, that if abuse of process could be applied to the situation in this case where simply because the verdict and final judgment was affected by procedural error, that it could be abuse of process and therefore set aside on that basis, there would in truth be very little point to the judicial review or appellate jurisdictions in general.  In other words, the principle, if the majority was right, was one of very wide application and that again speaks to, in our submission, the error of the principle.

In relation to the discretionary considerations we adopt the submissions of my learned friends who have preceded me.  In our submission, this was a very strong case not to exercise any such power to set aside a jury acquittal if that power existed. 

The appellant, Stakaj, has one difference from the two appellants who have gone before me in that my client has appealed his conviction against manslaughter and what occurred in the court below was that my clients and the appellant, N, who had also appealed against conviction, their conviction appeals were heard together and at the same time as this application by the Crown to set aside acquittal but only in relation to grounds of appeal pursued by Stakaj and N that the verdict of manslaughter should be set aside because it was invalid and invalid for the same reasons as the Crown was contending the verdict of murder was invalid.

Because of that, the appellant, Stakaj, has a different position than my learned friends in relation to admissibility of the evidence of the jurors and even, indeed, relied upon that evidence in his appeal against conviction for manslaughter and Chief Justice Kourakis would have allowed the appeals on the basis of that ground of appeal. 

So he does have a continuing interest in the issue of admissibility.  Could I say though that in the notice of appeal that was filed by Stakaj and, indeed, I think, even in my written submissions, the appellant did seek an order from this Court remitting the matter to the Supreme Court, to the Full Court, that is, but on reflection no such order was actually required and so I will withdraw that request.  There is no need for any order of remittal. 

If the Court were to allow the appeal and reinstate the ‑ set aside the Full Court’s orders and such - reinstate the convictions for manslaughter as well as the acquittals for murder, in my submission, that would have the effect of reviving the appeal in the Full Court for the appellant, Stakaj, automatically, without any order from this Court.

KIEFEL J:   Was no order made on the appeal against conviction by the Full Court?

MR HENCHLIFFE:   No, no orders were actually made.  They said it effectively became a nullity but they did not make any order even dismissing it so there is no need for any orders to be set aside.

NETTLE J:   Does that mean to say that if you were successful in this appeal you would then be contending that your conviction of manslaughter should be set aside because it was based upon an improper acquittal of murder?

MR HENCHLIFFE:   Yes, that is right.  Well, contending it should be set aside because it is based on a verdict for manslaughter that was unlawful.

NETTLE J:   Unlawful by reason that the jury had not come at least by 10 to the conclusion that you are not guilty of murder.

MR HENCHLIFFE:   That is right and so that would only – we would be contending that or we did contend that before.  That would rely, of course, upon the evidence of the jurors being admissible and it also being characterised in the way the Chief Justice did in his judgment, that is to say that he characterised it – and this is at page 429 of the appeal books, the judgment of the Chief Justice at paragraph 20.  He concluded that the effect of the evidence for the jurors was that it showed:

the foreperson delivered verdicts of not guilty of murder which the jury had not resolved to return and that by reason of that miscommunication there had been a miscarriage ‑ ‑ ‑

NETTLE J:   Do you not run up against Mr Walker’s “off the back of a truck” problem?  Now that you have the evidence you are seeking to open up what the jury deliberations were?

MR HENCHLIFFE:   We do to the extent that there is evidence that we do not rely upon but insofar as the evidence that was tendered and admitted before the Full Court, in our submission, we were entitled to get that evidence and we were entitled to use it. 

NETTLE J:   The Crown would be entitled to use 1, 3, 5 and 7 as well as just 5, would it not?

MR HENCHLIFFE:   Well, the difference for the Crown, your Honour, is we accept what Mr Holdenson has said is that for the Crown the evidence is legally irrelevant because it has no jurisdiction to bring application before the Full Court to set aside. 

NETTLE J:   That is right, but if you make it relevant on your appeal, assuming there is to be one, is not the Crown entitled to insist upon the whole of the affidavit going in?

MR HENCHLIFFE:   Subject to the exclusionary rule applying, yes.  It is relevant but then the exclusionary rule excludes it not because it is irrelevant but because it inquires into deliberations. 

NETTLE J:   Yes, I see.  You say you would not be inquiring into deliberations by tendering that evidence?

MR HENCHLIFFE:   That is right, your Honour.  In our submission, the evidence that was admitted – that is, just simply the question and answer in part only to question 5 – is not evidence of the deliberations, but evidence of the outcome of the deliberations.  It is a matter which is always asked of the jury at the end in order to find out what their verdicts were.

GORDON J:   If we were against you on that submission, then what happens in relation to your appeal against conviction?

MR HENCHLIFFE:   We do it by the grounds which have not yet been agitated, your Honour.  If that were to happen, we would return to the Full Court ‑ ‑ ‑

NETTLE J:   You have got an unreasonable verdict ground, have you not?

MR HENCHLIFFE:   Unreasonable verdict.  There are also some complaints about statements by the prosecutor and, I think, one of the trial judge’s directions.  There are a couple of other grounds as well as unreasonable verdict.

FRENCH CJ:   The first three grounds of your notice of appeal – I am looking at 295, the substitute grounds of appeal – they do involve, do they not, impugning the verdict of acquittal, your own verdict of acquittal on murder.

MR HENCHLIFFE:   They do, your Honour.

NETTLE J:   ’Twixt Scylla and Charybdis.

MR HENCHLIFFE:   Yes.  Your Honours, I think it was put in the court below that we would try and have our cake and eat it too.  Perhaps there is something in that, but we are looking at what view can be put before the Full Court, what cake it can eat and what it cannot, in effect, based on the issue of jurisdiction.  In our submission, a right of appeal against conviction gives the Court the jurisdiction to look at it, at least, from the point of view of our appeal.

Your Honours, that is all I wish to say.  I do not wish to go into the intricacies of the interpretation of the jury information.  I will leave that to Mr Kimber, I believe.  If the Chief Justice has correctly characterised it, however, we would submit that that part of the evidence is admissible on our appeal.  Of course, if the characterisation is wrong, if it does ‑ ‑ ‑

KIEFEL J:   But we are not making a finding about that on this – you mean on this appeal, not on the appeal from conviction?  I am getting confused.

MR HENCHLIFFE:   Yes.  Your Honours may make a finding in this case for the purposes of this appeal that on the characterisation of what the jury’s evidence is – and I suspect that that would have a rather persuasive effect on the Full Court as to how it might view it if it was different to that of the Chief Justice.  However, if your Honours agree with his characterisation insofar as question 5 is concerned, then we would be seeking to rely on that in the Full Court when the appeal is revived.

Your Honours, the only other submission is if the appeal is allowed, we have made some submissions in relation to costs.  They appear in our reply, and they are the orders we seek.  May it please the Court.

FRENCH CJ:   Yes, thank you, Mr Henchliffe.  Yes, Mr Abbott.

MR ABBOTT:   If the Court pleases.  The Court has our summary of oral submissions.  Can I say at the outset that I disagree with what my learned friend, Mr Henchliffe, has said about the appeal.  I say that because we have a similar appeal.  If the Court goes to the appeal book, page 277 – this is the notice of appeal by N.  The grounds are set out at page 279 and 280.  I did not draw this notice of appeal, and I was not involved in this matter until very recently.  In the event that the appeal was still live after the decision of this Court, I would not be relying upon grounds 1 and 2.  I do not want to have my cake and eat it.

It seems to me that, so far is N is concerned, if his appeal is still live after the decision of this Court, then I would be arguing it on the basis of unsafe and unsatisfactory and, effectively, only on that ground.

But this Court is entitled to know just what did happen because, taking into account what the majority did, there was then a further hearing – and I hand up five copies of this decision by way of completeness so that the Court understands what happened.  If I take the Court to paragraph 1, the decision of Chief Justice Kourakis ‑ and, again, I was not aware of this until recently – Chief Justice Kourakis says:

On Friday 18 September this Court delivered reasons and made orders in these matters.

That is a reference to what is in the appeal book by way of the judgment.  You will see that, after hearing from counsel – from Stakaj and N – the Court:

recalled its orders and its reasons –

The Court reconvened.  And then, paragraph 2:

Before delivering . . . counsel for Mr Stakaj and N asked this Court not to proceed to make final orders –

as they had intimated they would and as the Court has and as we see at appeal book 474.  But, the application was made – do not make these orders:

until hearing submissions on the unreasonable verdict ground –

Chief Justice Kourakis at paragraph 4 said that he:

allowed the appeal of Mr Stakaj and N on the ground that the verdicts returned of not guilty on murder were not true verdicts.

Well, that is reflected in his judgment.  He said:

I, therefore, would have set aside their convictions for manslaughter.  In the ordinary course, I would then have heard their submissions on the unreasonable verdict ground before determining the final disposition of their appeals.  However, the orders made by the majority setting aside their convictions were made in the original (trial) jurisdiction of the Court.

Et cetera.  Justice Gray’s judgment, however, is of some interest because he sets out, in the background section of paragraph 9, he says:

Upon receiving the reasons for judgment –

which I apprehended of what we find from pages 419 ‑ ‑ ‑

FRENCH CJ:   I think we might be missing some paragraphs here.

BELL J:   Yes.

GORDON J:   We have only got every odd page, not the even pages.

MR ABBOTT:   Dear me.  I do apologise.  I do have another copy.  I am sorry that I have handed up – I did not bother to check that they were properly done.  I apologise to the Court.  Paragraph 9, Justice Gray sets out what happened:

Upon receiving the reasons for judgment, counsel for Stakaj and HN submitted that the Court had proceeded to deal with the appeals . . . without hearing submissions from the parties as to the common form appeal grounds.  It was noted that the court could, pursuant to the ground that the verdict was unreasonable against the weight of the evidence, substitute the verdict with an acquittal –

. . . 

On 25 September 2015, the Court reconvened –

which is the date which is on page 419 of the appeal book:

to deliver its amended orders and reasons.

And a few lines further down:

Prior to delivering those amended orders and reasons, counsel for Stakaj and N made an oral application to be heard on the common form appeal grounds.  In the alternative, counsel requested that the Court hear submissions as to whether the Court should order an acquittal or a permanent stay –

So there was an application made.  If you are going to invoke the inherent jurisdiction, use it to order a stay or an acquittal.  This decision turns upon Justice Gray’s decision, joined in with Justice Sulan, not to order in the exercise of the inherent jurisdiction either an acquittal or a stay.  The relevant part is at paragraph 18:

Counsel for the defendants also contended that the Court should hear submissions as to whether the Court should order an acquittal or a permanent stay, rather than a retrial on the charge of murder.  Counsel contended that the Court had power to do so –

Justice Gray, with whom Justice Sulan concurred:

the Court does not have inherent power to order an acquittal in these circumstances.

In my submission, if they have got inherent power to overturn a verdict of acquittal, they should have power to order an acquittal in respect of verdicts improperly or arrived at in breach of the Juries Act.  The judge said:

Inherent powers are concerned with giving the Court the power to enforce its rules of practice and to suppress any abuses of its process.

So, again, this reinforces the notion that this case proceeded before the Court of Criminal Appeal as an abuse of process case and that is reinforced by paragraph 20:

It would also have been inappropriate to order a permanent stay in these proceedings.  The Court undoubtedly has an inherent power to order a stay of proceedings in cases of abuse of process where that is the most suitable order to prevent any injustice to the accused.  On the appeal, it was not suggested that, in the event the Court orders the verdicts to be quashed on the Director’s application, a stay of the proceedings would be a more appropriate remedy than an order for a retrial.

The court concluded by saying:

In the circumstances, the interests of justice require that a new trial is held on the Information in accordance with due process of law.

Finally, in paragraph 21, the reason given why that was the preferred course seems to be the sentence beginning “In the present case”:

In the present case, the issue was brought to the attention of defence counsel –

That is, the issue with the jury:

within eight days of the jury’s verdicts, prior to the lodging of any appeal against conviction.  The Court concluded that there was a serious irregularity with the jury verdicts such that they ought to be set aside.  This had the consequence of extinguishing any right of appeal of the defendants and any entitlement to an acquittal.

So the inherent power is limited, according to this judgment, not to allow an acquittal to be ordered.

BELL J:   Mr Abbott, this appeal that is before us is from the orders made by the Full Court on 25 September.

MR ABBOTT:   That is so.  I am only bringing this in so the Court knows the full picture.  It has been adverted to by my learned friend, Mr Henchliffe, so the Court ought to be aware that this is what happened and this was the ultimate situation.

BELL J:   But now the orders that you seek are, in the event the appeal is allowed, that the matter be remitted to the Full Court in order to determine your ground that the verdict is unreasonable?

MR ABBOTT:   Remaining grounds, and that the existing verdicts stay as they are.

BELL J:   Yes.

MR ABBOTT:   Could I then very briefly move to the oral submissions?  I do not say anything about inherent power because what I have said in the seven paragraphs on page 1 is nothing more than what has already been said by my learned friends perhaps in different words.  As to abuse of process on page 2, I particularly rely on paragraph 2.4.  We say:

To extend the inherent power . . . is to open up the spectre of a parallel enquiry into a jury’s verdict, parallel that is to the statutory right of appeal when a defendant has been convicted ‑ ‑ ‑

It seems to me that one of the consequences of allowing the position of the Director would be that a defendant can both appeal against his conviction, but also bring an application in the inherent jurisdiction alleging some flaw in the juror’s deliberation, or perhaps even a suspicion of some flaw. Why cannot a person apply to ‑ a defendant convicted apply to the court in its inherent jurisdiction for an inquiry to be made of the juror’s as to whether they were true to their oath? You see, the juror’s oath which is set out in Schedule 6 of the Juries Act is the usual common form oath found in – I think it is in all jurisdictions:

I (or we) do swear (or solemnly, sincerely and truly affirm and declare) that I (or we) will honestly, conscientiously and to the best of my (or our) ability try the issues at any trial at which I (or we) may be required to serve and will render a true and honest verdict in accordance with the evidence.

If there is any hint of a verdict which was not rendered in true ‑ in accordance with the evidence and was not true and honest, then why cannot an accused person mount some inquiry by an appeal to the inherent jurisdiction of a court to inquire into the juror’s deliberations?  For example, to give one perhaps facetious example, if a juror had been overheard to say to someone else and that had been reported to the defendant that they only convicted the defendant because they did not like the defendant’s lawyer, would that be a ground for the defendant – the accused person mounting an inquiry to the inherent jurisdiction?

It would not support an appeal against conviction because it is in the nature of second‑hand hearsay, et cetera.  But there seems to me to be no reason why if the Director’s arguments are correct the inherent jurisdiction is that wide.  But we say, of course, the inherent jurisdiction is very strictly confined, and I have made my submissions on that.

Could I turn to the third page of our oral submissions?  I approach this with some degree of hesitation given the decision of this Court in Stanton’s Case.

BELL J:   Indeed.

MR ABBOTT:   But I do say that it depends on whether or not – and what I have said in these paragraphs is, of course, subject to the Court’s decision in Stanton (2003) HCA 29. I do that because it depends upon what construction one places on section 57. Is it to be read as supplanting the common law or is it to be read in conjunction with the common law form? If the latter, then Stanton’s Case applies and section 57 works in tandem with the common law. If the common law is not intended to be applying, but only section 57, then one could construe section 57, as I have done in these paragraphs, to say, well, section 57 gives the jury a right to reach an alternative verdict about any decision – about any alternative charge provided they have considered the first charge, the major charge.

So, I said, I raise it for the consideration of the Court and the question is whether the express words of section 57, in effect, oust the common law and requirement for verdicts of not guilty on the major offence needed to be reached first before the alternative offence.

BELL J: I think the Chief Justice viewed section 57 as merely making clear that in the event that there is an acquittal on the principal count and say the jury are unable to agree on the alternative or lesser count, you can take the verdict on the first; is that the way the Chief Justice approached the matter?

MR ABBOTT:   I think he was less firm in that view.  Could I will take the Court to appeal book page 437.  His Honour said ‑ ‑ ‑

KIEFEL J:   Which paragraph?

MR ABBOTT:   I am sorry, paragraph 46, the second sentence:

However it is not obvious to me that it is that provision which precludes a jury from returning a verdict of guilty of an alternative offence unless it first returns a verdict of not guilty of the major offence.

Does your Honour see that?

BELL J:   This is in 46, is it?

MR ABBOTT:   Paragraph 46, the second sentence.

BELL J:   Yes, yes.

MR ABBOTT:   So he seems to be saying, well – which is the reason why I have put this potential ‑ ‑ ‑

BELL J:   I had in mind, I think, 47:

The manifest purpose of s 57(3) of the Juries Act is to allow a verdict of not guilty of the major offence to be returned –

and in that way avoiding the accused being placed in jeopardy twice in relation to the substantive offence.

MR ABBOTT:   Exactly.

BELL J:   Yes.

MR ABBOTT:   But what he is saying is that, as he said in paragraph 48 over the page, he says:

Section 57(3) of the Juries Act does not speak to this case.

That is exactly what I have identified on page 3 of my oral submissions. You do not get to section 57(3). The issue then is if you do not get to it and you do not get to 57(2), what work does then 57(1) allow a jury to do? That

really means whether you take on board the common law in relation to how verdicts are to be reached or not.  Those are my submissions.

FRENCH CJ:   Thank you, Mr Abbott.  Yes, Mr Kimber.

MR KIMBER:   If the Court pleases, I will deal for the respondent with the issue of admissibility and Mr Bleby will deal with the issue of power and discretion.  Can I take up the question from your Honour Justice Bell about the endorsement of the information?  My understanding of the usual practice is that is done on the spot or at the time, but can I take the Court for the purposes of this case and what was agreed to the agreed facts that Mr Walker touched upon earlier today, appeal book 2, 301, particularly paragraph 6 and the final sentence – appear to be an acceptance in the agreed facts that that occurred, what has been described as “the usual practice” occurred in this particular case. 

If the Court pleases, with respect to the issue of admissibility, the respondent seeks to satisfy the Court really of these four matters that I will develop after lunch.  First, that the jury did not reach the majority not guilty verdicts that it announced in open court.  Secondly, if that is established on the balance of probabilities, that that amounts to a miscommunication of their verdict and, if that is so, that miscommunication does not come within the exclusionary rule as articulated by this Court in Smith.

It is not, that is to say as a matter of fact, we did not have that verdict that we returned is not evidence of the deliberations.  It is not evidence as to how they reached that path.  It is not evidence as to whether they misunderstood or understood the legal requirements for a majority not guilty verdict.

KIEFEL J:   Is that the correct characterisation of the area you are in or are you really in an area of the limited exceptions to the presumption about the verdict being stated as it is and the concurrence of the jurors in the verdict?

MR KIMBER:   Even if we are in the area of presumption, and I accept there is a presumption, that presumption can be rebutted by a jury saying unanimously “we miscommunicated.”

KIEFEL J:   But that supposes that the jury is present, it is still constituted as a jury and within the control of the court.

MR KIMBER:   Yes, but why draw as a matter of principle a bright line approach between if the jury happens to still be within the reaches of the court, that is that they can still be configured as a corpus, they can correct their verdict.

KIEFEL J:   In criminal cases it may be because, if jurors then leave the precincts of the court, they are no longer a jury and people approach them to convince them that they did not really think what they said they said and then they are brought back to the court to say it was a contrary verdict, that might be one ground.  I know that we will suggest that a bright line should not be drawn but I think his references are to civil cases.

MR KIMBER:   Yes, they are, and in Cefia, Chief Justice King and Justice Sangster in their judgments refer to judgments which involve the jury having been discharged and the correction having been able to take place.  I will double‑check this, but from memory they are perhaps defamation cases or civil cases rather than criminal cases.

FRENCH CJ:   Does not the evidence seek to take you back into the jury room to find out what their votes were before they came out?

MR KIMBER:   It depends, your Honour, upon the characterisation of the evidence that was admitted, and certainly what cannot be admitted is evidence of votes, for example.  One of the questions asked in the interrogatory affidavits, if I can use that description used by Mr Walker, was about votes.  But why is it that a jury can state in open court “this is our verdict” and that does not amount to deliberations, it does not pierce deliberations, but if you ask them subsequently “was that your verdict?”, that it does?  It is simply the announcement of their position.  It does not go into how or why they reach that position which might have been a lawful approach or it might have been one as a consequence of a misunderstanding of the law.

BELL J:   Let us assume it was the latter.  Let us assume that the jury understood that if they were not unanimously satisfied of Mr Zefi’s guilt, it was open to them to proceed in relation to each accused whose case they were considering and to determine whether they were satisfied that that accused was guilty.  Now, let us assume that is the process they adopted, and it might be, if you look at all this material, that is one open inference.  That may show a misapprehension of the judge’s directions but why would that say anything about the propriety of the verdict that was recorded in open court in each case and to which none demurred?

MR KIMBER:   Because, in my submission, the question is whether or not the jury reached the verdict that they communicated. 

BELL J:   The jury in court heard the foreman pronounce the verdicts and none demurred and when they were subject to an inquiry some time afterwards, none suggested that the foreman had not complied with their understanding of his duty in recording the verdicts or announcing them.

MR KIMBER:   To the extent that they were asked.

GORDON J:   But they were asked.

BELL J:   The fact that they may have come to a conclusion following a process of interrogation that perhaps they got it wrong and expressed the opinion that their verdicts in light of the process that they had been taken to was not correct says nothing about ‑ ‑ ‑

MR KIMBER:   If it is an after the event, we realise we have made a mistake, that is one thing.  If the evidence goes further and says, even after the event, we did not reach that verdict that we returned, then they must have miscommunicated when they told the court, we are 10 or more for not guilty verdicts for all four appellants.

KIEFEL J:   Why is that the only inference?

MR KIMBER:   Why is that the only inference?

KIEFEL J:   All manner of things could have occurred in the interim.  The foreperson could ‑ I mean hypothetically, the foreperson could have contacted them; there might have been other communications to alter things.  There has been no cross‑examination.  That is the kind of area you would have to get into to determine what actually happened for them to have stated the opinions later rather than the statement by foreperson of the jury, with their obvious concurrence at the time that the verdict is rendered.

MR KIMBER:   That probably, if I partly at least understand your Honour, brings us back to this question of time, and after time there can be a change of heart.  After time, there can be influence ‑ ‑ ‑

KIEFEL J:   It can be any number of reasons.

MR KIMBER:   Indeed.  There can be influence.

GORDON J:   That is the reason why, Mr Kimber, we have a process whereby the jurors are asked questions through the jury person, in open court, given a time and an opportunity to express their disagreement.  It may very well be that a juror has changed their mind between the – so it has gone from 10 to 11.  Who knows?  That is the whole reason why there is a process in place, so that the time question has an end point.  The point at which, at the end of it, the jury is dispersed; no longer a jury, no longer under the control of the court, no longer subject to court control.  That is the time consideration and not some open‑ended exercise.

MR KIMBER:   No, but the issue of to draw a bright line would be to say that you can never – a jury can never correct their verdict if they have left the court and been discharged.

KIEFEL J:   No, the bright line might be because it is the policy of the law that it is dangerous to do otherwise.

MR KIMBER:   But the result – and I appreciate, of course, that the facts in Smith in this Court were very different.  It was a question of improper influence ‑ my words ‑ improper influence upon the jury deliberations, but the result in Smith was the contemplation that there could then be an inquiry of at least one juror, if not other jurors as well, with respect to that note.  So, the result in Smith is not consistent with there is a point in time at which you cannot make inquiries of a jury.

KIEFEL J:   But you are not talking about the jury correcting itself.  You have moved into an area where there is an inquiry into what is potentially overbearing coercion potentially in the context of jury fraud.  That is a true exception – a true exception to the principles stated in Snow.

MR KIMBER:   But what lies at the heart of the exclusionary rule are the two fundamental principles of finality which, obviously enough, the respondent has to grapple with and, secondly, secrecy of deliberations.

KIEFEL J:   And double jeopardy, perhaps?

MR KIMBER:   Perhaps double jeopardy, perhaps double jeopardy.

GORDON J:   Those principles of finality underpin the authorities referred to in Nanan where they talk about not receiving evidence from jurors who subsequently accepted that they did not understand the verdict, who did not agree with it.  I mean, you have got to grapple with all of those authorities which have been established principles for years.

MR KIMBER:   But the issue of time and the influence of time and the dangers of change of heart and influence are, at least, in part dealt with by the fact – by establishing that the jury were unanimous about the fact that they did not reach the verdict that they returned.  It is one thing to say that three, four jurors may well have been influenced by change of heart or something they had read in the newspaper or some other unknown influence, it is another thing to say that all 12 jurors might have been so influenced.

KIEFEL J:   Unless an exercise in relation to the jury has been entirely successful.  That is the sort of thing that could happen. 

MR KIMBER:   Yes, that all jurors might have had a change of heart, but ‑ ‑ ‑

KIEFEL J:   Or, other things can occur.

MR KIMBER:   Or other things.  Or, one of more – it may not be the same thing for all jurors.  I have to accept that.

FRENCH CJ:   The question that is being put to each of them in relation to the correctness of the verdict of not guilty of murder, is framed in terms of whether there was a – this is in question 5 – whether there was a majority of 10 or more.

MR KIMBER:   Yes.

FRENCH CJ:   It has been framed in terms of a headcount back in the jury room before they came out.  Is that not right?

MR KIMBER:   Not in my submission.  It has been framed in terms of, did you reach that verdict that you ‑ ‑ ‑

FRENCH CJ:   No, did you have a majority.

MR KIMBER:   Yes.

FRENCH CJ:   It is printed there at question 5.

MR KIMBER:   Yes.  And, so, did you correctly communicate that?  Answer, no, we did not.  We did not have that verdict; therefore, we did not correctly communicate it. 

FRENCH CJ:   This might be a good time to adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT 

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Kimber. 

MR KIMBER:   If the Court pleases, can I continue into that thicket of admissibility and, in particular, this question – or these questions of whether the jury were expressing that they misunderstood the law or whether or not the evidence establishes that they misstated when they said in open court that they had a majority not guilty verdict.

The issue of ambiguity has been raised by Mr Zefi and can I then deal with that issue?  Can I do so by taking the Court, as Mr Walker did, to the foreperson’s affidavit at appeal book 2, page 307 and particularly on this issue of whether or not it is established on the balance of probabilities that this was not a misapprehension issue? 

Can I just highlight some aspects of this juror’s affidavit, him being, of course, the first person to come forward and having come forward on his own motion, unlike the other 11 who were asked to give statements and then confirmed those in the affidavits subsequently.  At line 30, the foreperson speaks of being:

unsure about the accuracy of the majority not guilty verdicts –

In my submission, accuracy is far more consistent with “we did not convey accurately” than it is with “we misunderstood the way we were to go about reaching such a verdict”.

In the next paragraph, the final aspect of that paragraph, “we did not have a majority verdict of not guilty,” is expressed in the very context of what was agreed, what is being spoken of in that paragraph of we:

could not agree on a unanimous verdict of guilty . . . however, we did not have a majority verdict of not guilty.

So that is being said in the context, apparently, of what had been agreed.  Then of course, the next paragraph, which the Court can read for itself:  “Upon reflection” and so on “I should have said no.”  Further, there is nothing in this affidavit on its face, given that he came forward of his own volition, to suggest that “we misunderstood something; we misunderstood the law”.  He appears to be speaking of a verdict which was not reached but was conveyed.

The final part of that affidavit, beginning at line 40, was not part of the admitted parts in the court below.  Can I go then to the other affidavits and of course I am not going to take the Court to every affidavit.  But can I take the Court to appeal book 313 as an example and deal with this question 5 and the response to question 5, so those parts that were admitted, which were only the response with respect to the not guilty verdict.

The potential ambiguity is between – well, these affidavits show that there was no verdict and therefore there was a miscommunication or the possibility that there was a misunderstanding as to what amounted to a not guilty verdict.

It is important to observe, in my submission, that that question, “Please advise whether each verdict rendered was correct” mirrors the question asked in open court, that is, “Is this the verdict of 10 or more of you?”  So it may be that that is why it is asked in that particular fashion. 

More importantly, in context, what the jury are being asked in these affidavits is for their statements about factual matters, not opinions as to the law, not opinions as to their understanding of the law but factual matters throughout the affidavits but specifically, of course, with respect to question 5.

BELL J:   If you just go to question 3, is it right to say that they were not being asked for their understanding?  Does not question 3 inquire directly whether they understood that before a verdict of guilty of manslaughter could be delivered they had to acquit?

MR KIMBER:   Yes, it does.  Of course, that part was not admitted in the court below because it is plainly, in my submission, intrinsic; it goes to their understanding.

BELL J:   That reveals a difficulty that may explain why Mr Zefi’s stance was none of this is admissible but if it is you cannot simply isolate question 5.

MR KIMBER:   Even if that is so, when one looks at question 5 in context, it does not destroy the conclusion that we did not have a verdict, the conclusion the respondent says should be drawn from question 5, to say that we did not understand that step because that does not answer whether they actually had a not guilty verdict on murder.

GORDON J:   Just so I am clear about your response to Justice Bell’s question, I had understood that the position taken before the Full Court was that the entirety of the affidavit material was to be read and considered in order to determine to which bits you had regard.  So this isolation of question 5 is contrary to the way in which it was put below?

MR KIMBER:   I do not believe so, I hope, your Honour, in the sense that it was put that only certain parts were admissible but that in determining admissibility of those parts one had to view those parts against the background of the other.  It would be unnatural to lift up just one part and not be mindful of what else had been said.

GORDON J:   No, I was just having regard to the last sentence in paragraph 75 which records that no party had raised objection to the whole entirety being looked at.

MR KIMBER:   That is exactly right and that of course appears in the joint judgment, I think, your Honour.  It is a good point. 

GORDON J:   That is what ‑ ‑ ‑

MR KIMBER:   Yes, yes.  But if we look for an example, and we can do this with a number of other questions and answers beyond question 5, about understanding without repeating it, that response does not tell us whether or not there was a verdict on murder.  We find the answer to that, in my submission, within question 5.  Similarly, if we look at question 1 which is relied upon by Mr Zefi, to say that:

we agreed on Manslaughter for all four of the accused -

says nothing about whether or not we agree to return the verdict of not guilty, that we communicated.

BELL J:   But the question asks did you have misgivings about the delivery of the verdicts by the foreman and really no one answers that yes, because it was not the verdicts that I was a party to.

MR KIMBER:   Well, although, perhaps not absolutely, your Honour, yes.  Some jurors go on to say expressly that we thought that we did not have to come to a verdict on that if we had a verdict on manslaughter.

GORDON J:   Sounds like a misapprehension of the law to me.

MR KIMBER:   Yes, but then they did not have a verdict.

GORDON J:   They did, they just misunderstood what it was that they were supposed to be doing.

MR KIMBER:   Well, the respondent says rhetorically if you believe that all you have to do is return a verdict on manslaughter and you communicate that you have a verdict on murder then you miscommunicate.  That is what the jury said.  The jury said in open court, 10 or more of us are agreed on a not guilty verdict for murder and yet ‑ ‑ ‑

GORDON J:   No one said anything to suggest that they did not understand that that was the position at the time?

MR KIMBER:   No, and that is plainly an agreed fact and nothing was raised at the time.  If the Court were persuaded on the balance that the evidence was admissible and demonstrated a miscommunication, I have dealt with the submissions I want to make about Smith – Mr Bleby may return to Smith in a different way later today.  Can I just then refer to a couple of the authorities that are put against the respondent?

Biggs has been mentioned and this is dealt with by the respondent in the written submissions beginning at paragraph 18.  In the respondent’s submissions, Biggs can be distinguished.  What occurred in Biggs was that the jury said on six of the seven counts, we are unanimously not guilty and then very shortly thereafter suggested that they were of a majority. 

In the dicta upon which reliance is placed by the relevant appellants at page 555 of the reported judgment, Justice Franklyn referred to the possibility that there was, in effect, a gap in the questions that had been asked and the possibility existed that while, at one point they may not have been unanimous, that they agreed to return the verdict that was given and so they became unanimous in that sense. 

It is not difficult to imagine, in my submission, how a jury might do that for any number of reasons that might involve either misapprehension or, alternatively, moving their position and being unanimous and agreeing to the ultimate verdict.  But what is different about this case is that we know that the jury did not shift their position for whatever reason if they had earlier been not unanimous because it is one thing to say that a jury might be divided down some line and then agree, all agree, to the verdict being returned for whatever reason underlying that and then say in open court, we are unanimous and communicate that.

But, here, the jury did not do that.  The jury came in and said we are 10 or more.  It is difficult to imagine, with respect, how a jury would undertake this process of moving from unanimous but then, in some way, retain their divided nature at least to the point of 10:2.  So that distinguishes what occurs in Biggs, in my respectful submission, and also reinforces how this is more likely to be a case of miscommunication once no verdict was reached.

With respect to Nanan, the respondent distinguishes that at paragraph 39 of the written submissions and in the same way as it is distinguished, in particular, by Chief Justice Kourakis in the court below.  There are two important distinguishing features.  Can I take the Court to 867 of the judgment, at about point B, or just below on that page? 

What Lord Goff is referring to there are two things.  One, it was only four jurors, not 12; secondly, the possibility that the jury misunderstood what a unanimous verdict meant.  In my respectful submission, the fact that we have 12 here – if the Court accepts the respondent’s submission saying we did not reach a verdict – immediately distinguishes this from Nanan and places it into the territory that Wigmore speaks of, of a unanimous correction.  

BELL J:   At 866 of the report, one sees that in Nanan, the Clerk of Arraigns asked, in the presence of all the members of the jury, whether the foreman and other members of the jury had agreed upon a unanimous verdict ‑ ‑ ‑

MR KIMBER:   Yes.

BELL J:   ‑ ‑ ‑ to which the answer was yes.

MR KIMBER:   Yes.

BELL J:   That is relevantly different from answering a question “Are 10 or more of you agreed upon your verdict for a majority of not guilty”, is it?

MR KIMBER:   Yes.

BELL J:   In those same factual circumstances.  Out of the 12 in Nanan, four had not agreed upon the verdict.  On no view could it be described as unanimous.

MR KIMBER:   Yes, that is so in Nanan.

BELL J:   So the difference you are articulating ‑ ‑ ‑

MR KIMBER:   The two differences I articulate are, first, if the Court is with me with respect to what can be drawn from the affidavits, we have 12 jurors coming along after the verdict to say “We miscommunicated, we misspoke, we do not have four ‑ ‑ ‑

BELL J:   I understand.  You are saying ‑ ‑ ‑

MR KIMBER:   “We do not have four, we have only some of the jury”, which, in my submission, then enables the respondent to embrace, as the court below did, Wigmore’s approach.

BELL J:   Yes, I understand.

MR KIMBER:   We also have, in Nanan, in Lord Goff’s judgment, an acceptance of the possibility that this was a misunderstanding or misapprehension of what a unanimous verdict was and, of course, the respondent also seeks to distinguish it on that basis, on the materials.  If the Court pleases, they are my submissions as to admissibility.  Mr Bleby will deal with the issue of power.

FRENCH CJ:   Thank you.  Yes, Mr Bleby.

MR BLEBY:   May it please the Court.  We identify five questions that arise on consideration of any power to set aside these judgments of acquittal.  If we recognise the uncontroversial proposition that the Supreme Court, as a superior court of record and being of a particular description has an inherent jurisdiction, the first real question is what is the character of that jurisdiction.  The second question is then, in light of the existence of that jurisdiction and its character, what power is necessary for the effective exercise of that jurisdiction.

The third question is what effect on such power do any separate and sometimes overlapping statutory grants of power have, specifically, what effect does Parliament’s dealing with appeals from criminal judgments in the Criminal Law Consolidation Act have on the potential reach of any such power for which the Director contends. 

The fourth question is what effect does the perfecting of a judgment of the court have on such a putative power – that is, how is the principle of finality to be treated in such a situation; and the fifth question may then be do acquittals have a further sanctity that puts them out of the reach of any such power.

These questions supply necessary elements of an analysis that reaches the respondent’s substantive submission which is where the integrity of the judicial process has been unacceptably compromised the Supreme Court is empowered to set aside impugned judgments or orders including those that give effect to a purported verdict of acquittal and that this is such a case. 

This is not the same thing as saying that there is a broad, inherent power to set aside verdicts of acquittal that are affected by error.  Rather, it is saying there is such a jurisdiction that gives rise to a power to set aside acquittals in exceptional circumstances where there is an insistent demand of justice and the only question ultimately is whether the circumstances that arise in this case can and should motivate the Court in the exercise of its protective, inherent jurisdiction to set aside judgments of acquittal of murder.

BELL J:   Does it follow on your analysis that at the time of the establishment of the Supreme Court of South Australia, it had an inherent power consistent with the insistent demands of justice to set aside a verdict returned by a jury in a criminal trial?

MR BLEBY:   Yes, but I would accept it had not been recognised at the time and there are two parts to that really, your Honour - R v Snow which I will come to, was, as Justice Kiefel pointed out this morning, as long as there is a recognition of fraud as an exception the development of the jurisprudence that recognises the, if you like, protective jurisdiction had not been approached in that way but is the logical extension of the fact that it is relatively uncontroversial that there was at least one exception that there should be others.  But I certainly would accept that it had not been formally recognised. 

Can I start just then with the character of the jurisdiction?  We address that in our written submissions at paragraphs 55 to 71.  It should be uncontroversial that the court’s inherent jurisdiction arises on account of it being of a particular description.  It is a superior court of record in South Australia.  It is a court of law and equity.  Its powers are identified by reference to the unlimited powers of the courts of Westminster.  It has general responsibility for the administration of justice in the State and any inherent powers should be understood from that perspective. 

This Court, of course, has recognised the inherent jurisdiction, perhaps expressly in the case of Grassby v The Queen 168 CLR 1. That case established that a magistrate has no power to stay committal proceedings for abuse of process and in holding that Justice Dawson, who commanded the majority, distinguished the position of a magistrate from that of the Supreme Court. His Honour at page 16 quoted from Justice Menzies in R v Forbes; Ex parte Bevan 127 CLR 1 at page 7, to the effect that:

“‘Inherent jurisdiction’ is the power which a court has simply because it is a court of a particular description.

So, the courts of common law had inherent jurisdiction to prevent abuses of process and to punish for contempt without any enabling statutory provision.  Justice Dawson explained:

Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical . . . But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power.  In the discharge of that responsibility it exercises the full plenitude of judicial power.

As his Honour Justice Dawson described it, what that jurisdiction does is give rise to a well of undefined powers.  But the jurisdiction is protective and it extends to the maintenance of this authority and to the protection of the processes of inferior courts.  So we have to start from that very broad bedrock of jurisdiction expressed at quite some level of abstraction.  The second question then is what powers are necessary for the exercise of that jurisdiction?

FRENCH CJ:   Is not the term “inherent jurisdiction” itself descriptive of a set of implied powers?

MR BLEBY:   I may be breaking it down into unnecessarily detailed component parts, your Honour.

FRENCH CJ:   I am just saying jurisdiction is one thing, power is another.  It is a distinction which is useful to make, even though one accepts that the term “inherent jurisdiction’ has been used in the context of the common law courts.

MR BLEBY:   I am trying to step that out in that way, your Honour.  As has been discussed in part this morning, of course one of the powers that arises from that well is the power to protect from abuse.  I am very conscious of your Honour the Chief Justice’s comments this morning that any question of abuse may well be a red herring in this case.  We address questions of abuse of power in our written submissions from paragraph 63.  I need to be clear on how I rely on the jurisprudence relating to abuse, that is to say, what does the law about abuse say about the protective powers broadly described?  To that end, I look in the first instance ‑ ‑ ‑

FRENCH CJ:   Does it not tell you that they are incidental to the conduct of the carrying out of the functions of the court?

MR BLEBY:   Yes, your Honour.

FRENCH CJ:   In Pompano, which I see is noted, the question of inherent jurisdiction was related to the management by the court of its functions, the conduct of proceedings in open court in the ordinary course, of an option to go into closed court where the interests of justice required it.  Incidental or ancillary powers really.

MR BLEBY:   Yes, and as your Honour described it, quoting from Master Jacob in the Hamlyn lectures in that case, at paragraph 41:

“the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused.

That is, if you like, a starting point for the description that I am leading to ‑ ‑ ‑

FRENCH CJ:   The problem you have, I think, is you have an incidental – using the language that I used a moment ago of incidental power, albeit under this rubric of inherent jurisdiction, colliding with a substantive proposition in relation to acquittals.

MR BLEBY:   Yes, and the collision occurs at the point of the principle of finality.  I am still laying bedrock, as it were.  But that is a barrier, your Honour, that I need to face up to and I will do so.  It is trite that categories of abuse are not closed and it is also trite that simple unlawfulness is not sufficient to give rise to a conclusion of abuse.  This Court has identified two fundamental policy considerations that inform what is capable of giving rise to abuse.  I remain conscious of your Honour’s comments this morning, but I do need to just take this path – this was in Williams v Spautz, which was further adopted in Moti, at paragraph 57:

First, “the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike”.  Secondly, “unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”.

Of course, if we take those statements at their face value they do not necessarily require in all cases the existence of an abuser or an abuse as traditionally understood.  Of course, the reason why the categories of abuse themselves are not closed is because it can never be exhaustively predicted what may denigrate confidence in the administration of justice or bring it into disrepute and what is necessary in the instant case to maintain the integrity of the court’s processes. 

So the challenges to that integrity do not necessarily require the existence of an abuser and the need to keep open the categories will have to include categories, likely rare categories, where the threat to the institutional integrity of the court arises through human agency, but an agency that sits within those processes themselves and which would not be ordinarily recognised as that of an abuser.

BELL J:   If you come back to history for a moment and you look at what led in the United Kingdom to the Criminal Appeal Act 1907, I think it is commonly accepted it was celebrated miscarriages of justice – well recognised which brought on a view the administration of justice into disrepute ‑ ‑ ‑

MR BLEBY:   Yes.  

BELL J:   ‑ ‑ ‑ and led, after considerable agitation, to the enactment of that legislation because without that legislation, all that could be done was the Home Secretary could recommend a pardon.

MR BLEBY:   Yes.

MR BELL:   No one suggested that the court in the exercise of inherent power could quash the conviction, notwithstanding a recognition that an injustice had been done.  It just seems very difficult to marry up these broad statements taken from cases in very different contexts to the argument you are seeking to develop.

MR BLEBY:   It is unquestionably difficult, your Honour, and that is why I do not ultimately shy from looking at it in the context of the modern jurisprudence in terms as it will come to the principle of finality.  But my propositions are ones of necessary logic that do rely – focuses on the institutional integrity of courts where, in the past, as your Honour says, it was the miscarriage of justice and the protections, as I will come to, of the jury system that allowed the sense of the sacrosanct to appear to be the insurmountable barrier.  That is the barrier I have to find a way through or, at least, get over.  I certainly accept the difficulty I am faced with, your Honour.

Of course, we do see elements of this in the long‑recognised exception of fraud but then we see it in a case such as Smith v Western Australia where, of course, the threat was that of physical coercion of a juror from within the jury room, something that is within the jury room, but which is at least open to an inquiry.  I am not saying this case is on all‑fours with Smith – not for a moment – but there are cases at least where the protective powers of the court are at least likely to be moved.  Again, I am starting at a fairly general level.

So, when we look at it in terms of just jurisdiction and power, and we look at the well of undefined powers that exists on account of that protective jurisdiction, including those which are aimed at protecting from abuses of process, what they are doing is protecting the institutional integrity of the court and where that institutional integrity is threatened from within, in my respectful submission, there is no case for saying, in a case of a genuine threat, not mistakes or errors of law, just ordinarily so‑called, there is no case for saying that there is no power to prevent against such a threat.

FRENCH CJ:   Why could not one say that, if you had evidence that a group of jurors decided that the law was unreasonably harsh and that although on the facts as they found the defendant had contravened the law, notwithstanding, they are going to find him not guilty.  Does that not threaten the institutional integrity of the court, if one uses that broad term?

MR BLEBY:   Yes, viewed as the abstract proposition almost certainly, your Honour, with respect, but the question is always going to be triaged by the exclusionary rule.  That is a policy choice, a deep policy choice that has been made in furtherance of protection of the institutional processes and I will ultimately come to, right at the end when we are talking about the question of discretion, threats to the institutional integrity can come from more than one side and sometimes policy choices have to made and the refusal to walk into the jury room is one of them.

KIEFEL J:   When you say triaged by the exclusionary rule, are you then putting your submissions in the area of the exceptions to it?  Is that really where it comes down to?

MR BLEBY:   No, sorry, your Honour, I might not have been clear.  To put it bluntly, if Mr Kimber’s submissions on admissibility are unsuccessful then I am out of court.  There will be a whole lot of occasions within the jury room that, if looked at from afar, would cause shock and horror as to the course that might lead to a conviction or an acquittal.  The common law has long said, well that may well be the case but we do not inquire into that because the integrity requires some basal questions to be answered and this is one of them.  We do not go into the jury room.

KIEFEL J:   This effect on the institutional integrity of the court, is it any order entered by mistake that affects the integrity of the court?

MR BLEBY:   No, your Honour, because the court has jurisdiction to make mistakes.  That is long understood.  Indeed, Craig made that very clear.  Errors of law, matters of mistake, and as I am about to come to, what we are looking at is something that absolutely strikes to the heart of the jury system and my submission is that no less would suffice and ‑ ‑ ‑

KIEFEL J:   Well, that is the criminal justice system.  Is there a difference between the criminal justice system and the integrity of the court’s processes?

MR BLEBY:   Well, the fact that it is the criminal justice system will give some content to the processes.

KIEFEL J:   Well, no, do not the court’s processes support the criminal justice system?

MR BLEBY:   Yes.

KIEFEL J:   Does the criminal justice system on your argument speak to the court’s processes?

MR BLEBY:   I am not sure that I understand the question, your Honour.  I am sorry.

KIEFEL J:   Well, as I understood it, what you are saying is that something goes wrong in the jury process, that is in the criminal justice process ‑ ‑ ‑

MR BLEBY:   Yes.

KIEFEL J:   You are saying that from that, one infers that the integrity of the court’s processes is impugned.

MR BLEBY:   Only, and as I will come to and I am speaking on the question of finality, only if the thing that goes wrong is such that the very institution of the jury, that the reason why it is there, is compromised to the point that public confidence is denigrated such that there cannot be confidence.  It is not any ‑ ‑ ‑

KIEFEL J:   Public confidence does not always get a huge run in institutional integrity cases.

MR BLEBY:  No, it does not your Honour.  I think it was in R v Carroll, which is not on our list but which we have handed up, there is a comment about what is meant by “public confidence” in this case.  I am speaking of it in the context of the type that would bring the Court into disrepute, that level of compromise of confidence.  “Colloquial” is the wrong word but not in the lay sense.

KIEFEL J:   Yes.

MR BLEBY:   The sense in which I am trying to describe it is that it would be the conclusion that the court has actually failed to function as a court of law within the criminal justice system and that proposition is based on the historical importance of the jury as a bulwark against State power but also as the community’s chosen institution for the determination of guilt or innocence.

We address that importance at paragraphs 45 through to 49 of the written submissions.  But to proceed to judgment – that is, the Court entering its judgment of acquittal ‑ where that interposition of the body of one’s peers has fundamentally failed, is to proceed to judgment where an essential feature of the process has failed and, as I say, nothing less would suffice.

The third question then that we have to build into this consideration is:  what effect does the statutorily prescribed appellate jurisdiction have on that broad framework?  Each of the appellants in one way or another has pointed to the regime in the Criminal Law Consolidation Act that limits the opportunity to the prosecution appeal against acquittal to prescribed circumstances.  They are acquittal on trial by judge alone and directed acquittal. 

They submit, essentially, that on account of Parliament having made a decision as to the limits of prosecution appeals from acquittals, there is then no room for the inherent jurisdiction to expand, to fill the gap, or even that the enactment of these provisions amount to an implicit acknowledgment that in the absence of a specific statutory jurisdiction to quash an acquittal the Court has no power to interfere.

Each of those submissions, in my respectful submission, either misses the point that the inherent jurisdiction arises from the jurisdiction of the Court, and we again rely on your Honour the Chief Justice’s statement in Pompano at paragraph 42, which makes, with respect, the grounding observation that the consequent inherent power is:

not . . . displaced or abrogated by general words in a statute nor by statutory provisions or rules which overlap with them.

What we are talking about is an inherent power that is necessary for the Court to manage its activities appropriately and that in the absence of the most express exclusion of such a power a parallel appellate provision simply will not say anything about that.

A similar sentiment was expressed by Justice Menzies in one of the cases that is put against us, Bailey v Marinoff 125 CLR 529 at 532. But it is also important to remember that the appellate jurisdiction of course deals with all manner of error. We are concerned only with that which would amount to a fundamental compromise of the proceedings.

KIEFEL J:   What do you say, though, of the specific statutory provision which limits appeals in relation to acquittals to trial by judge alone?

MR BLEBY:   We say that says nothing about the inherent jurisdiction.  It says a great deal about the appellate jurisdiction and by limiting it, it says you can appeal from a trial by judge alone on all manner of appealable error.  There is a sliver of overlap, of course, with that which may move the court’s inherent power, but only a sliver, because I am limiting myself to the most ‑ ‑ ‑

KIEFEL J:   Perhaps its greater relevance is in connection with the exclusionary common law rule.

MR BLEBY:   Possibly so.  But of course, ultimately, I have got to face up to recognising that while a miscommunication by a jury can be corrected immediately while the jury is still together and within the precincts of the court, they are still constituted as a jury such as in Cefia.  What changes where the jury has been dispersed…..and judgment hinted – that is, affection – and to get to the point where it can be said that that failure enlivens the power to set aside a perfected judgment, I have hurdles.

The first is that this is could only occur in an exceptional case, and when we are considering a failure of the jury process, as I have said, that will in the first instance be triaged by any admissibility question.  A great range of possible fatal compromises of the system will be triaged out by the question of admissibility.

KIEFEL J:   Why do you start with admissibility, because admissibility can only depend upon identifying a question associated with a claim that the law will recognise?  Is that not where you start, and then determine the relevance of the evidence sought to be admitted by reference to it?

MR BLEBY:   I only take that approach, your Honour, because there is a sense in which there are two questions running in parallel, and I certainly accept your Honour’s and the Chief Justice’s observation this morning that without power, there is nothing at all.  I do accept that.  That is simply an observation that certainly in all of the matters that this Court needs to consider in the disposition of this appeal, my observation holds, but yes, it ultimately may not matter.

Secondly, of course, the principle of finality is not to be underestimated.  This Court has made many statements in the relevant context; Achurch v The Queen, for example, is one that is put against us and which we have referred to.  I will not take the Court to that.

From Achurch, of course, we have the proposition that there is a principle distinction between applications to reopen orders before their entry and afterwards.  This case is not concerned with reopening.  We are concerned with being concerned with the inherent jurisdiction, the appropriate treatment to be given to the principle of finality invites, in my submission, two perspectives.  The first is the subordination of the principle of finality to the preservation of the integrity of the criminal justice system such that evidence extrinsic to the deliberations of the jury may be admitted in exception to the exclusionary rule.  If we have reached the stage of the power of the court to set aside the judgments we would have – I will withdraw that.

We cannot engage with a principle of finality in this context ultimately without coming to Smith, which I will do so in a minute.  But the second perspective is what I will call “exceptionality”, and by that I mean recognising what has been regarded as a sufficiently exceptional case such as might justify setting aside a defective judgment.  Fraud is the uncontroversially recognised exception.

As to the first of those perspectives, in Smith this Court maintained the significance of the principle of finality but recognised that it will not trump all circumstances such as where a refusal to inquire into an allegation of criminal conduct directed to influencing a juror would dishonour the integrity of the jury and the criminal justice system.  That was the majority at paragraph 41.

The appellant in that case, of course, had been convicted rather than acquitted, but as a matter of straight principle and subject to what I will say about cases as R v Snow, it is very difficult just as a matter of principle to see that a genuine threat to the integrity of the criminal justice system that exists in a case of a conviction would not also exist in like circumstances in the case of an acquittal.  It is here we have conceptual overlap between the questions of admissibility and power, potentially. 

The Court in Smith was primarily concerned with the question of admissibility on account of the shadow that the note that had been left in the jury room cast over the convictions with the subsequent question of an inquiry then to be determined by the Court of Appeal.  In this case, the same concerns have been the subject of an inquiry by means of obtaining an affidavit from each juror.

If the evidence is admitted with the conclusion that Mr Kimber urges that the verdict was indeed miscommunicated and that a majority verdict of not guilty had not been reached, I then go to the statements of this Court in Smith in answering the complaint that the judgment was perfected and the jury dispersed, paragraph 43:

“Finality is a good thing, but justice is a better”.

Paragraph 44:

“blanket rule is unsustainable”.

At paragraph 45:

the first duty of the courts to preserve the integrity of the system of criminal justice which they administer.

Then that raises the second perspective on the question of finality which is what kind of exceptionality would cause the Court to set aside a defective judgment.  Here we come up against cases such as Bailey v Marinoff, Gamser v Nominal Defendant, for the basal proposition which is rooted in that principle of finality that:

Once an order disposing of proceeding has been perfected by being drawn up as the record of a court, that proceeding . . . is at an end . . . beyond recall ‑

That is the essential statement by Chief Justice Barwick in Bailey v Marinoff at page 530. But, even the Chief Justice went on to note that:

The finality of the order –

in that case did not:

partake of injustice in the circumstances –

that that was simply a case of the appeal books not having been filed in time.  And, Justice Menzies at page 531, emphasised that the order was:

without error or lack of jurisdiction, has been regularly concluded –

and that was the basis concluding that there was no power arising within the inherent jurisdiction to make orders in respect of proceedings that had been brought regularly to an end.

That was applied in Gamser.  That was a case where the physical injuries to the plaintiff were found to be far more extensive after the conclusion of the proceedings and there was held to be no basis for setting aside a regularly concluded order, and the Court noted there that the exceptional avenue of taking a separate action impeaching the judgment of fraud was not relevant but it did at least confirm that availability to general proposition.  That, of course, was all confirmed by this Court in DJL v Central Authority 201 CLR 226.

So, a mistake, a simple mistake, made by a party in failing to discover documents, failing to comply with some procedural step which might lead to unfairness in any given case will not be enough to take the exceptional step; they are both riding the finality of a judgment.  Mistakes and errors of law do not compromise the judicial process.  However, I would pause there and, perhaps ‑ save perhaps for a complete denial of procedural fairness and I would just refer to Justice Gageler’s decision in Pompano – by way of observation – at paragraph 194.

So, in Burrell v The Queen, the situation there – which is where the Court of Criminal Appeal had discovered that it had drawn some inaccuracies and the appellant’s submissions as to the Crown case – that was not enough to overcome the principle of finality.  But, of course, Burrell was concerned with the question of reopening a finalised exercise of statutory appellate jurisdiction which is not what we are seeking to do and no party in Burrell alleged that the appellate court – proceeding on the basis of wrong facts – amounted to an abuse or something analogous or that the fundamental integrity of the court was somehow impugned by that state of affairs.  All the Court of Criminal Appeal had sought to do there was to reopen its own judgment and reconsider its orders which the court held, of course, if it was to be available had to be found in the governing statutes.

What we submit instead is that fraud – a recognised exception – should be seen as an exception because it comprises an attack on the institutional integrity of the Court.  Any other such attack, or recognising another such attack, will only occur in an exceptional case.  But, the possibility of such compromises on the integrity of the Court causing the principle of finality to be outweighed is something that actually has been long recognised by this Court and by Chief Justice Dixon in Council of theCity of Greater Wollongong v Cowan 93 CLR 435 at page 444 where his Honour the Chief Justice said:

If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice.

Ultimately, analogously, we say to the question of fraud, the question is whether there is an insistent demand of justice that requires the setting aside of a judgment.

FRENCH CJ:   Many people would have different views of what an insistent demand of justice was.

MR BLEBY:   Certainly.

FRENCH CJ:   It is a colourful metaphor, but it is not really a selection criterion.

MR BLEBY:   No, your Honour.  Forward carriage without the benefit of long understanding that structurally equitable ‑ ‑ ‑

FRENCH CJ:   Vitiates everything.

MR BLEBY:   Vitiates everything, but we know what it is.  And that is why I am certainly prepared to accept that nothing less than a complete failure of process will do and here we say because of the very particular – let us even say sanctified role of the jury, where that verdict is miscommunicated and what is taken is not the verdict of the jury, the process has broken down completely.  That is an extraordinary circumstance.  All that is left then is what is said to be and was emphasised by my learned friend, Mr Holdenson, the sanctity of acquittals.  That is raised specifically with reliance on R v Snow as an authority that governs the situation.

Variously, the appellants submit that it is a fundamental principle of the common law that a verdict of acquittal, returned by a jury on indictment in a criminal trial, conducted by a competent court, is final and conclusive of the issue which the jury is sworn to try.  The verdict is sacrosanct.  There are various propositions, statements by this Court, that give that content.

Both the plurality and the separate judgment of Justice Evatt in R v Weaver 45 CLR 321 draw the distinction for these purposes between a verdict of acquittal, reached by a jury, and the verdict of acquittal directed by an appeal court. The practical distinction is that directed verdicts are subject to the appellate power. But we are not suggesting that there is a relevant appellate power. Taking the submission at its core, Justice Evatt's statement at page 356:

The jury’s verdict of not guilty has a special constitutional finality and sanctity which are always regarded as an essential feature of British criminal jurisprudence.

But what we say rhetorically is sanctified about verdict that is not correct.  Sanctity is in fact and can only be a particularly rarefied statement of the principle of finality of judicial proceedings and we take that from R v Carroll at paragraph 48, the judgment of Chief Justice Gleeson and Justice Hayne. Not only is the very condition on which statements such as Justice Evatt’s are premised not met in this case but the quality that is said to give verdicts of acquittal such sanctity being the insertion into the process of a jury of one’s peers to stand between the accused and the State, as we set out in our submissions, that is the very thing that has been compromised.

KIEFEL J:   Does not the sanctity of a verdict of acquittal come from and reflect other views about criminal proceedings being repetitively brought against individuals?  It has other bases, other than views of finality ‑ ‑ ‑

MR BLEBY:   Well, I would respectfully ‑ ‑ ‑

KIEFEL J:   ‑ ‑ ‑ to a person who is going to be charged more than once.

MR BLEBY:   Yes, but of course it is still, in my respectful submission, a breed or a creature of the principle of finality because not only does the community expect judicial proceedings to be concluded finally, an accused person is entitled obviously to expect that once the proceedings are concluded, the proceedings are concluded and - double jeopardy.

KIEFEL J:   But it is not just the accused person themselves.  There is the wider social and legal principle at stake.

MR BLEBY:   Yes, certainly, yes, and that is why it would only ever be an exceptional circumstance and that it is why I apprehend, with respect, in Smith, the door was left open with finality is good but justice is better.  That could only, however, occur in an exceptional case and we apprehend that that is why the appellant, Zefi, in his written submissions, argues for the - on the observation that the verdict of not guilty becomes merged with a judgment of acquittal – that gives, if you like, or reinforces the principle of finality but of course a judgment of acquittal, if that is caused by a fatally compromised process, the judgment of acquittal carries no more sanctity than does the verdict of not guilty.

Now, a judgment only carries with it one representation of the principle of finality. That brings us to Snow.  Each of the appellants relies on Snow essentially for the proposition that a verdict of not guilty returned by jury on indictment is final and conclusive on the issue that they are sworn to try, being guilty or not guilty of the offence charged and, as the appellant, Jakaj, puts it, whether or not the verdict of not guilty is tainted by irregularity or mistake.

Now, I have made one observation in my written submissions about what Snow actually stands for, which is the power of this Court under section 73 of the Constitution and the very question that we are talking about was assumed from the outset, including by the Crown. I acknowledge the force of Mr Walker’s submissions as to the strength with which the basal proposition was also put by the Chief Justice and in particular by Justices Gavan Duffy and Rich at pages 363 to 364.

Those statements rely on the fundamental institutional principle that the jury is the sole trier of fact.  Even if there is an evident mistake in their reasoning, the verdict cannot be called into question.  But that does not address the situation where that which was communicated as the verdict was not the verdict.  Snow proceeds on the same basis as other case such as Weaver that the verdict of the jury was their verdict.

KIEFEL J:    But you cannot surely say that the verdict pronounced was not a verdict.  What you say is that it should not stand as the verdict, it should be set aside.

MR BLEBY:   We are saying the judgment should be set aside because of how the verdict should be characterised.

KIEFEL J:   Yes, the judgment should be set aside.

FRENCH CJ:   We have the sense that running through some of your submissions is a kind of argument analogous to that which gets around a privative clause, that a decision is not a decision where there is jurisdictional error and a verdict is not a verdict with ‑ ‑ ‑

MR BLEBY:   Yes.  I had not thought of it like that, your Honour.

KIEFEL J:    Do not try to answer it, Mr Bleby.

MR BLEBY:   Can I perhaps just deal with the question of discretion.  The appellants have submitted that if there is the power apparent, which I have submitted, there should be a refusal to set aside any exercise of the discretion.  There are really two issues with this.  The first is really what the appellants mean by discretion in a case where the mischief has been to jeopardise the integrity of the institution. 

If we have reached the point that the power is enlivened, it is very difficult to see what discretionary consideration would operate to persuade the court not to exercise the power and we rely on the statement by Justices Gaudron and Gummow in R v Carroll 213 CLR 635 at paragraph 73, where they say the word “discretionary” on the power to say:

indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse.  It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not.

The appellants in saying that there should be recognised and exercised a discretion to refuse the relief, point to considerations that are themselves really all manifestations of the principle of finality and the better view, in my submission, is that in an exceptional case such as this that principle is considered in its appropriate context as subordinate to the requirements of justice, that is, if we have reached the point where the power is enlivened, the threat to the institution and integrity of the court, there is nothing left to the discretion.

Mr Walker puts up well, what about a case 20 years down the track if something is brought to the attention of the court and an application is brought and otherwise the abuse is identified or the compromise to the integrity.  That can still be resolved at the question of the power because, you see, in 20 years’ time, if the Court is faced with that, there would be likely - the principle of finality would then take an overwhelming significance because it would be a far greater compromise to the institutional integrity of the court exercising the power.

When the world has had the finality of the judgment for 20 years, it can still be resolved at that level because it would amount to an abuse or a compromise or an unacceptable threat in that situation. So that a superadded requirement of discretion does not arise and should not be seen to arise.

BELL J:   Well, Mr Walker suggests one reason why it arises is that the prosecution, armed with all the information about this circumstance which it is said now had drawn the administration of justice into disrepute, chose to go ahead and present submissions on the question of sentence for the offence of manslaughter and now adopts a stance that is entirely inconsistent with that.  Why is that not a discretionary consideration were we to get to it?

MR BLEBY:   If, on the approach that I have urged, it is something that is built into the question of what is the threat to the institutional integrity, it can be – I am not going to say that it is something that cannot be taken into account in considering whether the institutional integrity has been compromised.  It is not a great distinction between saying let us load all of the factors in to see has the court’s institutional integrity been unacceptably threatened; what has the Director done in the meantime that allows us to take a step back and look at this all and say “No, in all of the circumstances, there is no threat”.

NETTLE J:   But is it not relevant that they have now had to plead for leniency on their sentencing?

MR BLEBY:   The trial judge took that submission into account and decided – sorry, sentencing charge, at the point of sentencing – took that into account, from recollection – I may be corrected – and determined that there was, in the circumstance, no compromise.  There was some sympathy expressed, but none that should forestall the progression to sentence.  That was ruled on at that level – I use that word “ruled” advisedly because I have read the transcript, but I am just trying to bring to mind precisely what was put.

NETTLE J:   I quite understand, but are you saying that what they said on their plea could in no sense compromise their future defence if they are put up once again on murder?

MR BLEBY:   As a general proposition, no, it could not, because – or at least, not in any relevant sense, because that would be not particularly different than going to sentence, but preserving the rights of appeal in the ordinary course.  It happens often enough.

NETTLE J:   Well, it depends on what they said.  I just do not know ‑ ‑ ‑

MR BLEBY:   Yes.

NETTLE J:   ‑ ‑ ‑ how their pleas were presented.

MR BLEBY:   Cases are conceivable, but as I understand it, the sentencing judge did not consider that to be the case here, because it was raised by Mr Boucaut, I think, who was counsel for Mr Jakaj.  Finally, let us assume for a minute, then, we look at this through the prism of discretion in any event.  There is no error that has actually been identified in a House v The King‑type sense.  Counsel for Zefi submits that while the Full Court in the majority did not actually address this question of discretion, what the majority did do – and this is at paragraph 164 of the judgment, which is page 473 of volume 2 of the appeal book – was say:

In our view, controlling and correcting this invalid determination is a proper exercise of the Court’s power to preserve and protect procedures that have, as their ultimate consequence, periods of imprisonment or acquittal.  The powers relating to protection of abuse of process extend to “precluding the undermining of confidence in courts generally”.  Allowing a verdict which was arrived at other than by strict compliance with mandated legal requirements would undermine this confidence.

On any question of discretion that is all the Court had to do in that circumstance, in my respectful submission, when it came to the question of whether to exercise power.  May it please the Court.

FRENCH CJ:   Thank you, Mr Bleby.  Mr Walker.

MR WALKER:   If it please the Court.  Both my friends have employed the construction of this jury not having reached a verdict and both my friends have called that in aid in order to describe as a miscommunication the answer to the associate in court.  The premise is, in our submission, extremely doubtful if and when attention is paid to all of the material, some of which was offered by the Crown in support of the proposition - that is the evidentiary material. 

In relation to the answers to question 1 in the questionnaire, there are nine – I am just going to give page numbers - which very strongly, some of them absolutely explicitly, refute the notion that there was any miscommunication by what was delivered in court in answer to the questions.  Those are the answers that are found at 321, 329, 337, 345, 353, 361, 377, 385 and 393.  There are as well very suggestive matters found in some of the answers, five on my count, to question 3.  Those are the answers found at 345, 353, 361, 377 and 385. 

In particular, the possibility that some - one cannot say all about this case at all, all the jurors ever, on anything - one sees a misunderstanding of what would support the delivery of a verdict of not guilty to murder in terms of deliberation and in terms of what I will call vote.  That is the misapprehension or mistake which, in our submission, is plainly revealed and is frankly sought to be acted on by the Crown argument.  That is all I wish to say specifically in answer to my friend, Mr Kimber. 

What I want to add in reply to the argument you have heard from my friend, Mr Bleby, is as follows.  It emerges by combining what my friend puts and, in particular, in answer to questions about the so‑called discretion that the test itself is, partly on the Crown’s approach, in order to avoid it being discretionary, it is what might be called an evaluative assessment by which I mean a decision according to near nebulous expressions such as the “insistent demands of justice” or expressions which are avowedly circular, namely, where the integrity of court process has been unacceptably compromised, and employing those phrases, repelling the idea that there can be a discretion and asserting that matters such as delay or mere lapse of a very long period of time can be “built in”, to use my learned friend’s metaphor, into an understanding as to whether the threshold condition for application of the rule has been met.

So, apparently, something becomes less unacceptable if more time ensues between it being committed, or engaged in, and it being discovered.  While that may be true of some phenomena in life, it is difficult to say that about matters concerning which our friends are bound to put the quite extreme views about what the cliché calls the “insistent demands of justice”.

We say – and embracing here the summary of views of the Chief Justice in paragraph 2 of his reasons below – that there is a tart and complete response to all of those matters framed in those terms by use of those phrasings and that is that what my learned friend calls finality and what, in the language of another era, may be called the sanctity of acquittal has its own, if we must, insistent demand and until this case it had apparently never occurred to anybody, either minded to make the request or to answer the request, that it should have been answered by saying, yes, there is a jurisdiction of this kind.

For the reasons raised by Justice Bell with my learned friend, it is difficult to understand not only the social and political but, most particularly, the black letter doctrinal history of criminal appeals in systems like ours and from which we borrowed and, indeed, which borrowed partly from us, if there had been anything even remotely resembling this jurisdiction. 

The next point we make about this, we submit, unstable, unprecedented and unprincipled notion of there being a jurisdiction to set aside a judgment based upon a verdict where the integrity of the administration of justice has been unacceptably compromised and in answer to resultant insistent demands of justice is that the principles, so called, the rule, bespeaks its foundation on matters which, to use my friend’s language, are at the core or at the heart, or threaten disrepute upon exposure for the administration of justice.

In other words, they are very grave and important matters apparently. But, with respect, it is impossible to understand how a coherent common law could produce such an approach where the same common law produces the preclusive rule preventing the tender of material ‑ that is, discouraging as useless and some legislatures sanctioning as criminal – inquiry into what happened inside a jury room.

Yet if the ground or foundational matters for the exercise of this supposed jurisdiction are so grave and important and the existence of the jurisdiction is in order to repel institutional damage to the administration of justice, then it is impossible to understand how the same common law said but do nothing to find out about it and you cannot prove it if you suspect it.

It means of course that in order to be coherent, my learned friends really do need to shoulder, as their division of labour indicated they appreciate, they really do need to shoulder doing both.  They have to reverse the law about the preclusive rule and they have to find a jurisdiction hitherto undiscovered.

In our submission, one small technical point which is worth pointing out in reply, is that there has been no request to this Court, for example, to reopen Snow in any of its attributes.  Nor, for that matter, to reopen that part of Smith which evidently starts with approval Nanan.  In our submission, in the absence of that, there really is no scope for the arguments that my learned friends really must essay in order to succeed.

My learned friend, Mr Bleby, recognising, with great respect, the narrow road he had to follow employed the language of “exceptional” and held out the attractiveness of that which would bring success for the Crown in this case as being rare.  It needs to be said that the notion that an outcome being rare makes it attractive is itself a suspect form of argument particularly about the administration of justice and jurisdictions to protect it.  In other words, such jurisdictions should be used just as often as the threats in question arise.  If that is very common, then it should be used very commonly.

Rarity, in our submission, really is an indication of a danger that there is really no foundation in principle for that which is being proposed as a so‑called exception.  But this can be said about an argument about an exception, that it posits a rule and the rule surely is - the combined rule matters, or precepts in this case surely are the preclusive rule at the evidentiary level and the inviolability characteristic of acquittals which both have recognised exceptions, none of which has been engaged in orthodox fashion in this case.

It is for those reasons, in our submission, that this case does fall to be decided as simply as the Chief Justice decided the main point below.  In relation to the Chief Justice’s reference to the use of this, we say, inadmissible material in the appeals by others, not my client, against their conviction for manslaughter, about which you have already seen a division at the Bar table today, I have nothing to add and I should have said something plainer to that effect when answering Justice Nettle in‑chief.  That really is not my business.  That was not one of our appeals and I do not want to cut across others in that regard.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr Holdenson.

MR HOLDENSON:   Just two points concerning inherent jurisdiction.  The first point is this and it flows or is consequential upon the content of

our paragraph 11 in our oral propositions.  If I could just remind you of what is in paragraph 11.  In paragraph 11 we drew attention to what Snow said concerning section 80 of the Constitution or more precisely, that phrase from within section 80 of the Constitution, namely, the trial shall be by jury.

It was held in Snow that that phrase imported the common law institution of trial by jury and one of the benefits of that was the absolute protection afforded to a jury verdict of acquittal. I then drew attention to, in that paragraph 11, how it was that section 6(1) of the Juries Act 1927 (SA) was drafted in materially indistinguishable terms, namely, a criminal trial in the Supreme Court is subject to this Act, the Juries Act to be by jury.

The effect of that must be therefore, in our submission, that the inherent jurisdiction for which the respondent contends has been actually displaced by statute with the consequence that there is no such inherent jurisdiction for which the respondent contends.

The second point concerning the inherent jurisdiction is this.  In our annotated submissions we identified in paragraphs 42, 43, 44 and 45, four what we said were uncontroversial propositions.  Those four paragraphs, 42 to 45, set out by reference to a number of holdings of this Court a series of propositions concerning Crown appeals, Crown appeals against acquittals.  The footnotes cite the many decisions of this Court over the years which support those propositions, most of those propositions and most of those cases being informed by the holdings back in the case of Snow. 

But each of those propositions – and I will not read them out; they are there, 42 to 45 inclusive – each of those propositions is itself – each of those holdings of this Court are themselves inconsistent with the existence of the inherent jurisdiction for which the respondent contends.

So, Mr Walker made reference to, there is no application by the respondent to revisit the case of Snow.  There is no application to review any of that either and all of those propositions, in our submission, likewise, militate against there being that inherent jurisdiction for which the respondent contends.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Holdenson.  Yes, Mr Henchliffe.

MR HENCHLIFFE:   Your Honours, my only submission is to echo that point of Mr Holdenson and footnote 36 to the appellant Stakaj’s written submissions contains a reference to a number of New South Wales cases during the 1990s and 2000s in which this issue of the width of a Crown appeal against a judgment again was agitated and again no argument other than appellate right of appeal was thought to be worthy of consideration.  Again, all of those judgments proceeded on the basis that the power for the

Crown to appeal should be drawn very narrowly and construed very narrowly and again, all reinforced by Snow.  May it please the Court?

FRENCH CJ:   Thank you, Mr Henchliffe.  Yes, Mr Abbott.

MR ABBOTT:   My learned friend, Mr Kimber, referred to Nanan’s Case.  I would like to take the Court to Nanan’s Case [1986] 1 AC 860 at 871. If the Court would be good enough to take up that page, Lord Goff refers to the principle at the top of the page – which might be referred to, perhaps, as the “sanctity of the jury room principle”. It is a little different and a different principle than the sanctity of the inviolability of acquittal. But, further down, just above letter E, Lord Goff refers to:

Two reasons of policy have been given as underlying the principle -

which he refers to and which I have called the “sanctity of the jury room principle”.  He said:

The first is the need to ensure that decisions of juries are final –

which we have had a great deal of comment about, about the finality principle; and:

the second is the need to protect jurymen from inducement or pressure either to reveal what has passed in the juryroom, or to alter their view –

Thirty years on from Nanan’s Case, I would like to, with respect, add a third principle, a reason of policy, and that is in this day of internet and the increased means of communication via mobile phones, it seems to me that another policy aspect this Court should look at is the likelihood after dispersal of communications to and from jurors occurring which may colour the views that they had at the time that they were in the jury room and before dispersal.

In other words, in this day and age – and it was obviously not what Lord Goff was thinking about – once dispersal has occurred, jurors may either think that they are relieved from any direction by the trial judge to discuss the case in any way, shape or form, or may just ignore such a direction and feel free to conduct, if they are so minded, their own inquiries by internet or Facebook search on any aspect of the case, or perhaps more relevantly, unintentionally or intentionally, their views may be infected by communications to them via electronic, telephonic or other means or personal contacts after they have returned to what might be described as normal life after their time in the jury room.

My conclusion on that is that this consideration, as an aspect of policy supporting the sanctity of the jury room, does not seem to have been considered by the learned trial judge when she embarked on the course of interrogating the jurors.  No thought, with respect, seems to have been given, that I can discern, as to what might have happened in the interval between the jury leaving the jury room and dispersing and then being asked these questions.  This is why at the end of the day, in our submission, with respect, the learned trial judge should not have conducted or perhaps more properly, authorised any interrogation of any of the jurors in this case.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Abbott.  The Court will reserve its decision.  The Court adjourns to 2.15 on Tuesday, 14 June.

AT 3.42 PM THE MATTER WAS ADJOURNED