Nudd v The Queen
[2005] HCATrans 654
[2005] HCATrans 654
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B22 of 2005
B e t w e e n -
KEVIN PHILIP NUDD
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 31 AUGUST 2005, AT 10.22 AM
Copyright in the High Court of Australia
MR M.J. BYRNE, QC: May the Court please, I appear with my learned friend, MR C.J.N. EBERHARDT, for the appellant. (instructed by Graham Lawyers)
MR A.J. RAFTER, SC: May it please the Court, I appear with my learned friend, MR G.R. RICE, for the respondent. (instructed by Director of Public Prosecutions (Commonwealth))
GLEESON CJ: Yes, Mr Byrne.
MR BYRNE: May the Court please, the primary submission on behalf of the appellant in this case is that the objective uncontrovertible conclusion on the record is that the appellant’s trial was conducted upon a fundamental error as to the law on a central element of the offence, without instructions and for the very reason so that counsel could conduct the trial on his own particular trial theory. That, in our respectful submission, is an egregious error. It takes this case beyond what is perhaps the high‑water mark of cases of this sort in this Court in Tuckiar v The Queen and goes to the next level.
That does not mean, in our submission, that the principles laid down by this Court as recently as in Ali v The Queen and TKWJ v The Queen do not provide the answer to the question posed and the determination of this appeal. Indeed, the question and the answer to that question which is posed, and the response to it, are straightforward, in our submission. Given that the question is – and we take this question, with respect, from the phraseology of your Honour Justice Hayne in Ali v The Queen at paragraph [25]. If the question be “whether there could be a reasonable explanation for the course that was adopted at trial” – and that is the course which we have outlined earlier – then the answer to that question, in our respectful submission, must clearly be no. There could be no reasonable explanation for a criminal trial for a serious offence of this nature, let alone any offence, to be conducted in that way.
KIRBY J: By that you are referring not only to the failure to call the appellant, but also the conduct of the questioning and concessions made during the course of the trial by counsel?
MR BYRNE: Indeed, your Honour. We say that because of the fundamental error, this trial miscarried, for want of a better word, prior to the first witness being called. The fundamental error infected the process from that time.
GLEESON CJ: I am not suggesting that your question is wrong or that ultimately the answer you give to it is wrong.
MR BYRNE: Yes, your Honour.
GLEESON CJ: But how could it ever be said there is no reasonable objective explanation for failing to call an accused person?
MR BYRNE: Our submission is not that the – to jump ahead to try and answer your Honour’s question directly, the Court of Appeal saw that as a determinative factor in the appeal, namely, the issue was whether there was an objective reasonable explanation for not calling the appellant. In our submission, that is not the real issue in the appeal. That is a consequence.
GLEESON CJ: But you would never know why counsel did not call his client. Maybe counsel did not call his client because he did not trust him.
MR BYRNE: There could be many explanations. There are cases, and we have attached some of the recent Queensland authorities, where instructions, for want of a better word, are disclosed. That may be the exception to the rule, but I take on board what your Honour the Chief Justice said to me.
GLEESON CJ: In fact, I have a more fundamental problem. How would you ever know why counsel did not call his client? How do you find that out?
KIRBY J: In this case Mr Laws gave evidence, did he not?
MR BYRNE: In this case both Mr Laws and the instructing solicitor at trial gave evidence, as did the appellant, as to what the discussions between them had been and the reasons for the ultimate decision. So that is probably an example of how one could answer the question your Honour poses.
GLEESON CJ: So the way you know why counsel did not call his client is if by chance the client has waived legal professional privilege and you get into evidence about what was going on in the mind of trial counsel. Is that the way you do it?
MR BYRNE: That is what occurred here, your Honour. This is not a case where there were, to use your Honour, the Chief Justice’s words in Ali v The Queen, “layers of speculation involved as to what happened”. Where that is a situation, of course, one cannot answer the question and where there are layers of speculation that could go either way then no miscarriage of justice is demonstrated.
GLEESON CJ: This is a problem I have that does not go to your fundamental proposition but it goes to a practical aspect of the way issues like this are fought out at an appellant level. I do not know what the answer is, I must say.
MR BYRNE: In my submission, it is not possible to answer that general question; it must depend on the case. For example, in Sheppard’s Case, which is the most recent example in the Court of Appeal Queensland, where the instructions were disclosed, which included the fact that there was evidence of self-defence and there was denial of a particular confession made, where those things are in evidence, then one can examine objectively whether counsel’s decision to call or not to call an appellant or an accused is objectively reasonable. So there may be circumstances where that can be objectively assessed but of course there may well be situations where one just has to look at the trial record and see whether there is an objective reasonable explanation.
KIRBY J: I think it is important in this case not to put all the eggs of the case basket into the basket of calling or not calling the accused because, as it seems to me at the moment, a strength of your case is not only the decision on that issue but the way questioning was conducted, the way submissions were made, the way concessions were provided and, therefore, it is a mistake to simply treat this as a question of calling or not calling the accused.
MR BYRNE: With respect, your Honour, that is our submission. That is a subsidiary issue in the circumstances of this case, the calling or not calling. It was a mistake by the Court of Appeal to put all the eggs in that basket, namely it had turned on the objectiveness or otherwise of calling or not calling the appellant.
KIRBY J: Of course the weakness of the case is that there is your client on a little boat with an awful lot of cocaine and conducting conversations. Ultimately, that takes you to questions of the proviso anyway because the terms on which in Australia the Court of Criminal Appeal legislation was adopted in colonial times against opposition in colonial times that it would be used by smart lawyers to get guilty people off on technicalities, was that there would be this ultimate question, a statutory question, of whether a miscarriage of justice has occurred, whether conviction was in any case inevitable.
MR BYRNE: Quite so.
KIRBY J: You have to take it in steps. The first step is, was there incompetence that led either to a miscarriage of justice or to no trial at all, as Justice McHugh puts it, and then if there was incompetence does the proviso provide an answer in this particular case.
MR BYRNE: Yes.
KIRBY J: Given the strength of the Crown case, which you concede.
MR BYRNE: Yes, and that is our starting point. We start with the question, going back, whether there could be a reasonable explanation for the course adopted at trial, and that course is not simply the failure to call the appellant, it is the whole way the trial was conducted.
HAYNE J: Then if that is the starting point, since you start with what I said in paragraph [25] in Ali, do you not need to read that in the light of what I said in paragraph [24], and the particular question in Ali, which was the allegation that there had been a miscarriage of justice because counsel did not object to the reception of evidence. The question presented about reasonable explanation for a course adopted is said, at least in the context of a case in which a particular form of conduct, failure to object, is what is in issue.
MR BYRNE: Yes.
HAYNE J: Now, how does that relate, where here you open the case by saying, “Look, counsel for the accused did not understand the law of knowing participation.” Now, is it relevant to go off into examination of reasonable explanations, or does that start point take you down a different path?
MR BYRNE: We are trying to go down well‑trammelled and principled paths. As I opened in saying this case is particularly untrammelled ground, at least on our researches in this Court, because the nature of the error is so fundamental. Your Honour puts to me the scenario in Ali where there was the failure to take various objections. Here, because of the error, that is the error as to the central element of the offence, the whole trial was conducted in a particular way and that is the focus of what the – in our submission, on principled grounds – whether there could be a reasonable explanation for doing it.
HAYNE J: Does it not drive you to the proper starting point in 668E of the Code of whether there was a miscarriage?
MR BYRNE: Whether there has been a miscarriage, yes.
HAYNE J: What is it that you identify as the miscarriage in this case?
MR BYRNE: Your Honour, part of our authorities we have referred to the decision of the Judicial Committee of the Privy Council in Sankar v The State of Trinidad and Tobago [1995] 1 WLR 194, that the facts of that case have their own interest but in particular could we take your Honours to page 200 of the report where the Judicial Committee refers with approval to a decision of Justice Hardie Boys in the New Zealand Court of Appeal in a case of R v McLoughlin [1985] 1 NZLR 106.
KIRBY J: Which page?
MR BYRNE: It is page 200, your Honour. Just above point E on that page the relevant quotation, in our submission, is this:
But certainly counsel may not take it upon himself to disregard his instructions and to then conduct the case as he himself thinks best. It is basic in our law that an accused person receive a full and fair trial. That principle requires that the accused be afforded every proper opportunity to put his defence to the jury . . . The present appellant has been deprived of that opportunity and justice has therefore being denied to him.
So to answer your Honour, Justice Hayne, what we say is that is the closest analogy we can get. Counsel here has gone off on a frolic, in ignorance.
HAYNE J: Yes, but if this is seen as the analogy, it entails us understanding what was the proper opportunity to present a defence to the jury that was denied. That provokes the question, what was the defence.
MR BYRNE: Can I approach that in this way. The best exposition, in our submission, as to what was not the defence and the address by counsel which was the defence put up on behalf of the appellant can be seen – and if I can take your Honours to a brief visit to passages within that to illustrate what our point is.
KIRBY J: Just before you do that, is there somewhere where we get a clear exposition of what knowingly concerned requires as a matter of law. Where is the authority that expresses that most clearly?
MR BYRNE: The best authority, in our submission, is from New South Wales authorities of The Queen v Tannous. That was a case relied upon by the Crown at trial. It was a case referred to counsel then appearing for the appellant as showing what the test was.
KIRBY J: This is not disputed between you and the prosecution.
MR BYRNE: I do not understand it to be disputed.
GLEESON CJ: What is the reference?
MR BYRNE: The reference is The Queen v Tannous (1987) 10 NSWLR 303. I have copies if that assists.
GLEESON CJ: Thank you.
KIRBY J: In summary, so that we can understand the error of counsel that you are going to now take us to, what is the principle and what, in short, is the error that you say will be illustrated by the citation of the passages in the transcript?
MR BYRNE: Your Honour, to answer that question could we take you in Tannous to page 308 of the report. It is, with respect, a very useful discussion of what is needed to constitute “knowingly concerned”. It is below point E at page 308. This is said:
Nor is it to the point that the appellant did not, in a sense, actively, that is, physically, do anything to further the importation. What is of importance is that by his conduct, that is by what he said and agreed to, he did in fact become associated with and thus involved, in the relevant sense, in the importation of the cannabis. He was in fact making, as he believed, a contribution to the furtherance of the importation by his agreement to allow the money Lahood owed to him to be used (as he thought) as a source of funds for the importation and, further, he was to share in the profits.
GLEESON CJ: What was the prosecution case here as to the manner in which your client was knowingly concerned in the importation?
MR BYRNE: The prosecution case was a circumstantial one. It was based upon, essentially, intercepted telephone conversations.
GLEESON CJ: I do not mean what was the evidence in support of the case. What was the case?
MR BYRNE: Perhaps I can explain it this way. The importation was to take place via Noumea to Sydney was the prosecution case. The appellant for most of that time was in the United States of America. At one stage he travelled via New Zealand to Noumea where he met up with one of the principals of the importation. The prosecution case, as I understand it, was that he became knowingly concerned by making suggestions, putting forward ideas, helping ‑ ‑ ‑
GLEESON CJ: Giving advice and information to assist?
MR BYRNE: Quite so.
GLEESON CJ: That is what I wanted to understand.
HEYDON J: There are seven particulars set out on pages 1007 and 1008.
MR BYRNE: That is so.
HEYDON J: That is where we find the allegations.
MR BYRNE: Quite so, your Honour. So against that background of what is involved in knowingly concerned and the Crown case we come to examine what counsel then appearing for the appellant said to the jury. I do not wish to take your Honours at length to it, but can I take your Honours to some passages.
HAYNE J: But have you concluded what you want to say to tell me what the accused’s defence was?
MR BYRNE: The accused’s defence, your Honour, as it emerged from what was – and I am not sure whether your Honour is asking me the question of what his defence as put at the trial was or what his defence would be on a retrial. His defence at trial emerges from what counsel then appearing addressed the jury on and that defence was that knowingly concerned involved some independent advice, something which moved the importation forward in a positive way, something which was original. All those things were put forward as the basis of the defence to the charge at trial. Ultimately our submission is that they are not defences. They are illusory.
GLEESON CJ: But your complaint is that your client was deprived of an opportunity of putting his real defence?
MR BYRNE: That is so.
GLEESON CJ: What is his real defence?
MR BYRNE: His real defence, your Honour, is set out in the matters – perhaps if I can – the easiest reference is to the written outline at paragraph 4.13 – that is our written outline.
GLEESON CJ: You mean his real defence is that he was knowingly concerned in the importation of cocaine into New Zealand?
MR BYRNE: He did not know that Jackson was importing cocaine wherever. He believed there may have been some drug on the boat which was headed for New Zealand, but he had no beneficial interest in it and he had disassociated.
GLEESON CJ: Just taking that step by step. If you were knowingly concerned in the transportation of cocaine by sea and the vessel was in fact headed for Australia and you said you thought the vessel was headed for New Zealand, that would only constitute a defence, would it not, if you thought it was impossible that the vessel would go to Australia, or improbable or unlikely. It would not be enough to say, “I thought the vessel was headed for New Zealand” if in fact you were going to be concerned in the transportation, wherever it was headed.
MR BYRNE: The way it was left to the jury, and this may not be a direct answer to your Honour’s question, but the jury actually returned after some hours of deliberation and asked the trial judge could the appellant be found guilty if the boat was headed to another place rather than Australia, and it was common ground and left to the jury on the basis of no he could not be guilty of this charge.
GLEESON CJ: It depends on what you mean by “headed for another place”.
MR BYRNE: A place other than Australia. That is the way it was left.
KIRBY J: The jury retired for 24 hours, I think we were told on the special leave hearing.
MR BYRNE: I think it was 36 hours, but it was some time.
GLEESON CJ: How did the jury come to be asking that question?
MR BYRNE: It is difficult to answer that question. There is material, which we have set out in the written outline, in which reference is made to another destination, namely we would say New Zealand, City of Sails, City of Boats, which could well be Auckland.
GLEESON CJ: You mean they thought up the point for themselves.
MR BYRNE: Yes, because it was common ground that no instructions had been taken from the appellant by his legal advisers as to what his true position was.
KIRBY J: The transcript does not reveal that that was put as a hypothesis by counsel.
MR BYRNE: It certainly was not, your Honour.
KIRBY J: So I suppose you could say that the fact that the jury had a concern and doubt about that made even more relevant in the facts that we know that they should have heard that defence fully advanced.
MR BYRNE: Well, it was not a hopeless defence, given the delay or the time spent out by the jury and by the question asked, in the absence of anything – I understand what your Honour Justice Kirby is putting to me. So were proper instructions had been taken and even without the appellant giving evidence, proper questions being asked as to the meanings or submissions made as to the meanings of passages within the intercepted tapes, then a different complexion is placed on the case.
KIRBY J: Would you give us in due course the reference to where the jury asked that question?
MR BYRNE: Yes.
KIRBY J: It does not have to be now. At some stage.
GUMMOW J: What is the territorial reach of 233B - knowingly concerned where?
MR BYRNE: The importation into Australia, I understand – and I am subject to correction by my friends – that it is a 12‑mile limit.
GLEESON CJ: No, but if you are knowingly concerned in the United States in the importation of cocaine into Australia, is that caught by the section?
MR BYRNE: I believe so, your Honour, yes.
GLEESON CJ: I think there have been a lot of cases on that, have there not, and particular cases about conspiring overseas to import things into Australia?
MR BYRNE: Yes.
GLEESON CJ: There is a decision of the House of Lords on that – Doot.
MR BYRNE: Your Honours, leaving aside what a defence or defences may have been, the way the trial was conducted is evident from passages in the address. Briefly stated, they are these, if I can take your Honours to them. First, at page 211 of the appeal book – and whilst your Honours are finding that, could I give the answer to your Honour Justice Kirby’s question, page 314 of the transcript has the question which is asked by the jury:
“Does the accused need to know the final destination of shipment, ie, Australia, in order for him to have committed an illegal act as charged?”
At page 211, line 45 is the opening by counsel then appearing:
Good afternoon, ladies and gentlemen. You’ve hardly heard boo from me all trial, have you? You must wonder why I was really here. I represent Mr Nudd. My name is David Laws and, obviously, I’m a barrister.
That unusual opening speaks, in our respectful submission, volumes as to what trial counsel’s case theory and frolic was. His case theory was not to get instructions, to lie waiting for the prosecution to finish its case without effectively challenging any of it and then to put forward his own wrong interpretation of what “knowingly concerned” was. At page 213 – and this is something that was mentioned in the special leave application, but it is really quite extraordinary – at line 10 counsel said, after referring to the right to silence of an accused:
and having said that about his silence he’s hardly been silent in this Court, has he? You’ve heard him on tape and those tapes I’d ask you to bear in mind are contemporaneous with events.
Now, that, as emerged, was contrary to instructions and it was something which was said virtually in the first minutes of counsel’s address, a concession that the primary evidence against the appellant, namely, the tape recordings, were reflecting his own voice contemporaneous with events. Counsel then goes on at line 25 to say this:
The essential facts that must be proved are . . . that Mr Nudd actually knew the Sparkles Plenty was carrying a narcotic drug of some sort. Ladies and gentlemen, on the evidence before you I am not going to insult your intelligence and your good commonsense and be suggesting that the element that he –
my emphasis –
knowingly might have done something is probably not satisfied.
So, again, at the start of the address there is this concession that there was knowing involvement in the importation by the appellant.
HEYDON J: Are ephedra and pseudoephedrine narcotic drugs?
MR BYRNE: I am not sure I know the direct answer to that. I do not think pseudoephedrine is. It is a common pharmaceutical.
HEYDON J: It was part of the defence that, according to paragraph 36(b) on page 684 of volume 3 of the appellant’s affidavit that he did know that Mr Jackson “was taking some chemicals, possibly Ephedra” on the ship.
MR BYRNE: My understanding of that, your Honour, is at its worst for the appellant, whilst those drugs per se may not be narcotic drugs, they are certainly precursors or ingredients from which narcotic drugs can be manufactured.
HAYNE J: I do not think either of them is listed in Schedule 6 of the Customs Act.
MR BYRNE: No, I think that is correct, your Honour. I am reminded that during counsel’s evidence before the Court of Appeal, as counsel then appearing, he conceded that the appellant had said something along those lines to him during the course of discussions, albeit not in the course of taking instructions, but nothing was made or done with that.
HEYDON J: Along what lines, narcotic drug or ephedra?
MR BYRNE: Ephedra and amphetamine – sorry, pseudo. Returning to the address, counsel concedes that there is knowing involvement, concedes that the voice on the tape is that of his client and then ‑ ‑ ‑
HAYNE J: I think you have to read the paragraph you last read to us together with the next succeeding paragraph where counsel seems to be trying to draw some distinction between “knowingly might have done something” and “knowingly concerned in something”.
MR BYRNE: Quite so. Counsel spells out what that, as he describes it, rather irritating concept of “being concerned” is in his defence to the jury at page 214 in the paragraph commencing at line 5 and going to 24 where he focuses upon, contrary to the law in Tannous that:
In short, you can’t give practical assistance by giving advice to people who know what they’re doing, who have a plan in place, much less to give advice or encouragement to someone who has already actioned an idea of their own . . . It’s got to be an original idea, all your own. It’s got to be something new which assists someone in perhaps going off in a different direction or developing or formulating an idea. It’s got to have content, originality, something beyond what one or a group of people engaged in an exercise might be about.
My task today on the issue of practical assistance – and that’s really the defence case –
To take what your Honour Justice Hayne said to me, there seems to be a concession as to knowingly. The focus then turns to concerned and the way in which counsel has conducted the whole trial is that the defence rests upon whether there has been practical assistance given by the appellant to the importation.
GLEESON CJ: He seems to have picked that up from what the prosecutor said in his opening.
MR BYRNE: Quite so. The history on the evidence which was given was that counsel had prepared on the basis of a territorial argument, namely, that the ship was intercepted outside the territorial limit of Australia – end of prosecution. That seems to have fallen flat on day 1 of the trial and from there springs up the “practical assistance” concept which seems, as your Honour the Chief Justice puts to us, to have been latched upon because of something said by the prosecution.
GUMMOW J: How did her Honour direct the jury about this question of law?
MR BYRNE: She said it was wrong.
GUMMOW J: Where did she say that?
HAYNE J: Page 293, line 30 and following, I think.
MR BYRNE: Yes, that is the direction.
HAYNE J:
I have to correct some things on this issue said in addresses.
MR BYRNE: Yes. Her Honour deals with it firstly immediately after – and I am jumping forward because the recurring theme as identified by the prosecution and by the Court of Appeal is this practical assistance, original ideas, could the prosecution have taken place without the involvement of the appellant. As soon as the defence have finished their address as to what was said to be the only defence, the Crown raised that issue directly with the trial judge – and this is at page 272 going over to 273 – and say correctly, in our respectful submission, these things are errors. Her Honour then at page 273, about line 29 states this:
Yes. In this particular case, I think beyond that –
that is beyond the errors of practical assistance and moving the matter forward –
it will be necessary to actually indicate to the jury that I am correcting some things that have been said on the issue.
. . .
HER HONOUR: And I do intend to indicate that it is not the law that in order to be concerned in the importation that the accused’s assistance must concern an original idea or involve something new . . . nor is it the law that for the assistance or involvement to be practical it must be effective . . . I will give some directions that one can give practical assistance even though the party to whom one is giving assistance is an expert on the subject . . . and that the question is not whether the importation could have taken place without the accused’s involvement but whether the accused was involved.
Now, that really showed the emperor to have no clothes, in our respectful submission. Immediately after the recurring theme and the only defence those issues are stripped away and the appellant is left naked and with nowhere to go.
KIRBY J: Was the law ever as stated in the hypothesis of the trial counsel? I mean, did Tannous reverse any law? He seems to have been expressing a series of principles that sounded as if some judge said them once, but was there ever that narrower view or not?
MR BYRNE: Where counsel appears to have got it, apart from latching onto a prosecution idea, appears at the top of page 276 where counsel says:
But may I add, and complete my submission, as a matter of English “practical assistance” imports something more than utterly useless, utterly futile, of no moment whatsoever, and the gravamen of what I put forward to this jury –
So counsel seems to have, rather than gone to authority ‑ ‑ ‑
KIRBY J: Yes, barristers hate statutes.
GLEESON CJ: At that stage, instead of construing the statute, he is construing the Crown Prosecutor’s address.
MR BYRNE: Yes.
KIRBY J: Usually it is judges that they love construing, but the Crown Prosecutor is sort of the next best thing.
GLEESON CJ: Did defence counsel make an opening statement?
MR BYRNE: No, your Honour.
GLEESON CJ: Did he have the opportunity to if he wanted to?
MR BYRNE: It is not unheard of in Queensland. I am informed by Mr Rice, who appeared at trial, that it was simply not raised in this case.
KIRBY J: But that is not an answer to the Chief Justice’s question. In some States it is not uncommon for a short statement to be made by counsel for the accused in answer to the opening address.
MR BYRNE: Yes, that happens in Queensland as well. Not all the time but occasionally.
CALLINAN J: But not immediately after the prosecution’s address, does it? It only happens, does it not, at the beginning of the defence case?
MR BYRNE: Certain judges allow a brief reply to be given after the prosecutor’s opening.
CALLINAN J: Immediately after the opening?
MR BYRNE: Yes.
CALLINAN J: How long has that been happening, do you know?
KIRBY J: Justice Callinan is scandalised with this departure from the Code.
CALLINAN J: No, I am just curious.
MR BYRNE: It seems to have been a development which has sprung up. It was certainly something which was occurring ‑ ‑ ‑
GLEESON CJ: It is a case management development that has happened in a number of jurisdictions and it provides defence counsel with an opportunity that remarkably few of them want to take advantage of.
MR BYRNE: Yes.
HAYNE J: Though in some jurisdictions it is now compulsory to state your defence.
MR BYRNE: To answer your Honour Justice Callinan’s question to me, to my knowledge it has been going on for about three years, at least in the Supreme Court.
CALLINAN J: Thank you.
MR BYRNE: To further answer a question that was put as to whether counsel was relying on some other unknown authority, could I take your Honours to page 274, line 30 where her Honour the trial judge says this:
Mr Laws, let’s just cut to the chase here. Where is the authority that says that in order to render assistance within the meaning of the concept being concerned in that the assistance needs to be original – some original idea or thought?
Counsel at line 55 ultimately replies:
In those terms there is no authority . . . upon which I can rely.
That is the basis of our rather strong submission, that this was a frolic of counsel without instructions which ‑ ‑ ‑
KIRBY J: Well, “frolic” is a loaded word and I think what we have to face is that counsel had not looked up Tannous. That is a pretty bad mistake if you are dealing with the very serious offence for which there is a very serious punishment, not to look up the basic law that applies.
MR BYRNE: That is why we say, your Honour, that that is such a basic and fundamental error. It must have infected whatever counsel did. It affected the way he left it to the jury. It must have affected any decision to take instructions. It must have affected any manner in which he cross‑examined and conducted the trial. He simply waited because he thought he had this point to make, but the point was not there.
KIRBY J: Well, he came, apparently, without any preparation at all and latched onto the prosecutor’s address and then, as the Chief Justice said, did a construction job on that address and looked up the dictionary by reference to that address.
MR BYRNE: So it would seem.
KIRBY J: In a case which carried life imprisonment as a potential punishment.
MR BYRNE: Twenty five years, of which the appellant received 22.
KIRBY J: The maximum penalty for his offence, if convicted, was 25 years?
MR BYRNE: Was life imprisonment, I am sorry.
KIRBY J: Just give us the section to that later on, if you would. That will be somewhere in the Customs Act.
MR BYRNE: Certainly. I am informed 235 of the Customs Act, your Honour.
KIRBY J: It is not asking an awful lot for a lawyer to look up the cases on the statute in a life imprisonment case. Did the evidence in the Court of Criminal Appeal reveal how long counsel – this is not like a dock brief, is it, where it is handed to him as he is going into court? Justice McInerny once told me that happened to him in Victoria in a death penalty case.
MR BYRNE: What is perhaps more distressing, if anything, is that that was not the case here. Counsel was not given it at the last minute. Counsel had it for some time. The Court of Appeal seemingly found, in paragraph 41 – I will not take your Honours to it now, but it is paragraph 41 at page 1010 of the record – that it was essentially at halftime in defence counsel’s address when he is pushing the concepts of practical assistance, originality, the Crown Prosecutor stood up and said, “Well, you might like to look at Tannous v The Queen”. Her Honour the trial judge encouraged counsel to do that. The Court of Appeal found that from his reaction it was apparent he had not heard of that case before. Then in the second-half of the address he does not, with respect, appear to have changed his ways and continued along with the theme.
I can give your Honours the references to that. Page 217, which is in the first part of the address, about line 55 counsel states – and this is again contrary to instructions – him having accepted that it was his client’s voice on the tapes, which were not his instructions, he says at line 55:
the idea is canvassed by Kevin Nudd –
that is the appellant –
that perhaps they should give consideration –
that is the importers –
to getting the drugs in apparently on a surfboard.
He goes on to develop that theme as being not practical but it is a clear concession that not only was there “knowing”, as he has made that concession, but there was “concern” in it and he was giving advice and becoming associated with it. That theme continues at page 219, line 13 where counsel says:
In our submission, it’s not just enough that advice was given. It’s got to be useful advice. It’s got to be advice of the kind that will carry the matter forward.
KIRBY J: Is this after his attention has been drawn to Tannous?
MR BYRNE: This is before. I will take your Honours to – I will just do it briefly in full. Page 220, line 28:
Now, all of you will recall what you heard discussed between Kevin Nudd, Peter Jackson –
who is one of the principals –
and Sylvia Aldren –
who is the sister of Kevin Nudd –
about this false Australian passport.
So, again, there is a concession that the appellant is involved and concerned in getting a false Australian passport.
Counsel is then, at half-time, to use my inelegant phraseology, reminded, or perhaps it is pointed out to him, that Tannous is the relevant authority and perhaps what he is saying is not in accordance with the law. After that, page 252 line 10, counsel says:
We’ve looked at the question of –
my emphasis –
practical assistance at some length and we did that on Friday.
So there is no withdrawal of that concept. On that same page, about line 36, counsel says this:
I believe you will agree with me that Nudd offered Jackson nothing which he had not already thought of, which he had not already done before, actioned himself in the past, found out these things worked, or was actioning in furtherance of this enterprise.
So despite the law having been pointed out to him, he makes that statement, “You will agree with me that Nudd offered Jackson nothing” which was practical, original, et cetera. Again, a fundamentally, we say, wrong test.
GLEESON CJ: Where are the remarks on sentence?
MR BYRNE: Could your Honour bear with me? Page 366, Mr Rafter assisting.
GLEESON CJ: Thank you, Mr Byrne. So he was sentenced on the basis that he had “a high degree of seniority in the scheme to import the cocaine”.
MR BYRNE: Yes.
KIRBY J: That would be consistent with the jury’s conviction.
MR BYRNE: Yes. That was the way the prosecution left the case, that he was part of the inner hub, if you like. Part of the – and I will not bore your Honours with it – but part of the further or later submissions by counsel then appearing was to again adopt, or try to adopt, the prosecution’s thinking and say, “Well, there’s no evidence he was part of the inner hub”, but that still places him within the wheel, if you like.
CALLINAN J: Mr Byrne, Velarde was the man who was alleged to be the distributor or the wholesaler of the cocaine once it came in, is that right?
MR BYRNE: He was certainly involved in it. I am not sure the evidence goes as far as to show what the actual distribution network was to be.
CALLINAN J: That is how I understood it, and then I was looking at page 367 about line 33 in her Honour’s sentencing remarks. I take it there was a taped conversation that was capable of being interpreted as an admonition of Velarde for not getting on with it, as it were.
MR BYRNE: That is so.
CALLINAN J: Not making arrangements to distribute the cocaine.
MR BYRNE: Yes. Now, to go back to what your Honour the Chief Justice put to me a little while ago as to whether this was a late brief or there was some other excuse, that is answered by counsel’s conclusion of his address to the jury and this, in our submission, demonstrates that what he was doing was running his own misguided defence. If I can take your Honours to page 266 of the record, and this is – I quote counsel’s submission:
Doing the very best I can after living with this case on and off for the better part of the last nine months, looking at all the evidence before me, I can’t find any better explanation than the one I’ve put to you for his behaviour. He wanted to be one of the boys.
Now, counsel has characterised the Jacksons as the “Jackson boys”; “the Jackson gang”. What he is saying, in our respectful submission, there, is that the appellant was knowingly concerned.
CALLINAN J: I surrender.
MR BYRNE: In the prosecution. That is the end of his address.
KIRBY J: And this is after Tannous has been drawn to his notice?
MR BYRNE: Yes, and it is within three or four pages of the transcript that that is stripped away, correctly, by the trial judge as saying that is not the law and I will be telling the jury to correct what has been submitted.
KIRBY J: What page is that?
MR BYRNE: That is from ‑ ‑ ‑
KIRBY J: Page 276, is it not?
MR BYRNE: Page 272 onwards, yes.
KIRBY J: Did he change tack after the trial judge said that?
MR BYRNE: There does not appear, in our submission, to be any change of tack. I have given your Honours the reference at page 252 where he again goes back to practical assistance and not offering anything of that regard.
GLEESON CJ: Unfortunately at that stage there was no available paddle.
MR BYRNE: Arguably so, except to perhaps put his hand up which was not done. Now, that is why, in our submission, we say there was a miscarriage of justice. The way that trial was conducted, the way it was argued to the jury on a fundamentally flawed basis gave the appellant no chance of acquittal.
KIRBY J: You will have to deal in due course with the respondent’s submission that there was not much room to manoeuvre anyway, given the objective evidence that was available.
MR BYRNE: If I can deal with that immediately now, just to say this ‑ ‑ ‑
KIRBY J: Do not take it out of your course but if you want to lay down some more poison about the performance then we had better get all of it.
MR BYRNE: I will do that briefly but my response ultimately to that is a brief one. The Court of Appeal itself having assessed it said this was a strong case but it was not one even on the way the evidence fell that conviction was inevitable. It must flow, in our submission, that if the trial was properly conducted that he has lost a fair chance of an acquittal.
KIRBY J: But I understand the prosecution to be putting to this Court in response to your argument that we should not necessarily accept that assessment by the Court of Appeal because they say objectively he did not have very far to manoeuvre in the evidence that was brought against him.
MR BYRNE: The difficulty with me answering that is that that is not the position the Crown took at the Court of Appeal. They said that this was not inevitable, and that is way the Court of Appeal dealt with it.
HAYNE J: Can I just understand that submission a little better. I understood a premise, perhaps the premise for the argument, to be that there is a miscarriage of justice because counsel so conducted the trial for the accused that the accused was not given, as he should have been, every opportunity to put his defence. Pausing there, do I capture at least one premise for your argument?
MR BYRNE: Yes, your Honour.
HAYNE J: Step two would be there is a miscarriage because he was not given every opportunity to put his defence in either or both of two ways; (a) not proved, that is, the common defence of not proved beyond reasonable doubt, all of the elements ‑ ‑ ‑
MR BYRNE: To properly put the Crown to proof, yes.
HAYNE J: Yes, or (b), perhaps a positive defence, not Australia, but New Zealand.
MR BYRNE: And not illicit drugs.
HAYNE J: Now, as to those last two matters, not Australia but New Zealand, not illicit drugs, what is the answer to the proposition that the judge’s proper instruction to the jury about what they had to be satisfied of necessarily demonstrates there has been no miscarriage in those respects?
MR BYRNE: The response is that those issues were not even live ones before the trial judge.
HAYNE J: Well, her Honour did in her charge, as I understand it, particularly at 293, 294, perhaps over to 295 give the jury explicit instruction. See, for example, 294, line 40:
he must know that what he is doing is, or is a part of, bringing drugs into the country . . . established beyond reasonable doubt that the accused knew, that is had actual knowledge, that cocaine was being brought into Australia and that he was doing something to bring that about.
Now, those being the instructions to the jury and, by hypothesis at this stage it is accepted that they are proper or sufficient instruction, how can it be said that there is a miscarriage in respect of the items not Australia but New Zealand, not illicit drugs? You can see the next question coming which is, what do we do about not proved, but let us pause only on not Australia but New Zealand and not illicit drugs.
MR BYRNE: The difficulty with – and no issue is taken with the directions, of course, they are accurate - but the difficulty with the way the case was conducted and why we say there is a miscarriage of justice in that regard is that those issues, for example, the one your Honour raises that cocaine was being brought into Australia and he was doing something to bring that about, that was essentially conceded on his behalf to the jury by his counsel without instructions, and indeed contrary to instructions. So on the way the case was conducted on that basis, those instructions would inevitably have led to his conviction. He has not, we say, therefore had a fair trial because the matter was not only not litigated as a defence, it was conceded by his defence counsel that, yes, he is guilty of that.
HAYNE J: Which led me to the possible understanding that really the weight of the complaint tips over into the first complaint that there is miscarriage because he was not able to put his defence in the sense of adequately, properly, sufficiently put the Crown to proof.
MR BYRNE: That certainly is one premise, and an important premise to our argument.
HAYNE J: If that is the point, what is the role of the appellate court? The appellate court to determine miscarriage, in effect, objectively; was there truly a defence here; is its focus upon process; what do you say the focus should be?
MR BYRNE: The principal focus should be, and we go back to the question we posed in opening - your Honour’s question – whether counsel could reasonably have conducted the trial in this way. If the answer to that is no the next step is, has there been a miscarriage of justice, and that is then assessed in whether he has had his defence put, whether there was a fair trial - in effect, if there has been.
Justice McHugh, who is not a member of this Court today, but Justice McHugh has made a number of comments in that regard in TKWJ that where there has been this form of miscarriage of justice there is little, if any, room for the proviso to apply. With respect, one can see some strength in that.
KIRBY J: There is a stream of authority to that effect, is there not? I think it starts in Mraz that some errors will be so egregious that there has not really been a trial according to law at all and that is always a miscarriage of justice. Justice McHugh has said that in a number of cases. It is picking up on the proviso jurisprudence, I think.
MR BYRNE: That is so. I do not know whether that answers your Honour.
KIRBY J: Is that inconsistent with what was said by this Court in Ali or TKWJ? Is there anything in the other reasons in those two recent cases that is inconsistent with that view or is this simply something supplementary to what is expressed in the ‑ ‑ ‑
MR BYRNE: There does not appear to be anything inconsistent, in our submission, to that proposition, but having said that I am not sure that that particular aspect is dwelt upon by the other judgments. I am not sure if that answers your Honour Justice Hayne’s question to me.
HAYNE J: Yes.
KIRBY J: Could you remind me of Tuckiar? I have read it but I have forgotten the detail. What happened in that trial?
MR BYRNE: Tuckiar was the case in 1934 where an Aboriginal was on trial in the Northern Territory for killing a constable. Counsel there took instructions and then expressed his dismay to the trial judge as to what, if anything, he could do in light of those instructions and made all these statements in front of the jury which exposed his client.
GLEESON CJ: Tuckiar was a case in which they tried the victim instead of the accused.
MR BYRNE: Yes. As I say, we have not given Tuckiar as part of our authorities, but this is said at page 346 by the Chief Justice, Justices Dixon, Evatt and McTiernan:
it is not incumbent upon his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.
In effect, that is what happened here. The defence was abandoned, the proofs taken were ‑ ‑ ‑
KIRBY J: I am surprised you have not referred to it because Justice Hayne raised it in the special leave hearing.
MR BYRNE: Yes, and it is referred to in TKWJ. I think I have not referred to it because it is well-accepted jurisprudence, but we say this is, if anything, worse than that.
HEYDON J: But we have to try and work out what address should have been delivered, given the cards that counsel had to play. What, if any, was the strength of the evidence that the accused knew that the Sparkles Plenty was carrying a narcotic drug? What was the strength of the other evidence that the accused’s voice was on the tapes? You say there was none?
MR BYRNE: The difficulty with that is that instructions were not taken by legal representatives from the appellant. It would be very difficult to assess the strength of those issues on the Crown case without knowing what, and if, there was any answer to them on the part of the accused.
HEYDON J: I do not follow that, because the jury hears the Crown evidence. If counsel for the accused had simply stood up and said, “They have not proved beyond a reasonable doubt the key ingredients for the case, throw it out” and sat down, would that have been satisfactory?
MR BYRNE: It would have been better than what was done here.
HEYDON J: But there is a sense in which to say that sort of thing can attract ridicule. If there is evidence to support key elements of the Crown case and nothing is said about it, it can attract extreme scepticism.
MR BYRNE: When I say it was better, it is not satisfactory because again it fails to take into account the full context that counsel, whether he did that or whether he did what he did, was not armed deliberately with instructions because he wished to run the case the way he thought best
KIRBY J: Mr Byrne, what happened here seems so contrary to what would normally happen, certainly in civil litigation, because you sit down with a client and you say, “Now, this is what the law says” and you explain that to the client and that is your duty, but I rather got a feeling that there was some suggestion that counsel, trial counsel, may not have taken a full proof from the accused because that might later embarrass him in running various defences.
MR BYRNE: Yes.
KIRBY J: For all I know, this may be a common practice in Queensland, that you leave it all very nebulous so that you can be – that does not excuse you from not knowing what the law is, but it may explain what would seem to be the normal rational process that you explain the law and you get the proof, or you get the proof and you see how it works within the law, operates. Can that be an explanation in this case?
MR BYRNE: In my submission, no. The criminal law does not differ that radically from the civil law. It is fundamental that instructions must be taken. A criminal trial is not something which is staged for the entertainment of counsel. Where counsel has, in the passage I have referred your Honours to here, for nine months thought about the best theory he can put forward, does not wish to be embarrassed by what the client may say to him on inquiry, and simply runs that in front of the jury, which does not amount to a defence. That is extraordinary, in our submission. It cannot be excused by any practice of simply not wanting to be embarrassed. It goes much further than that. It is running a positive defence without instructions.
HEYDON J: You say no instructions but what do you say about paragraphs 5.7 to 5.12 of the respondent’s written submissions? They contend that, I think in all relevant respects except one, there were instructions. They say that paragraph 36(c) is not relevant to the Crown case. They say that defence counsel had knowledge of (a). They say that (b) was a complete fiction because it was not even mentioned to Mrs Nudd and they say of (d) that the appellant gave the relevant instructions. Are they wrong or right?
MR BYRNE: The difficulty with those submissions ‑ ‑ ‑
HEYDON J: But are they wrong or right?
MR BYRNE: We say they are wrong.
HEYDON J: Factually wrong, each one of them?
MR BYRNE: The Court of Appeal made a finding which appears and is set out in our friend’s outline at 3.1, which refers to the appeal book – it is page 1013. The Court of Appeal made a finding, we say a fact, that the trial representatives did not obtain the appellant’s version of events. That is a finding made after the Court of Appeal has, itself, heard evidence from the appellant and from the legal representatives then appearing.
HEYDON J: Yes, but the point is that paragraph 5.8, for example, turns on some specific evidence of Mr Laws. If Mr Laws were to be disbelieved you would expect the Court of Appeal to explain why, and they did not. So is it not the case, perhaps, that that statement of Justice McMurdo recorded at paragraph 3.1 is, as submitted, an oversimplification. There were no written instructions but there were some instructions.
MR BYRNE: It is difficult to know in the sense that it seems to have merged for the first time in the evidence of Mr Laws in the Court of Appeal that, yes, there was some discussion about ephedrine. There are no written notes of that, there is nothing in his lengthy affidavit, which was placed before the Court of Appeal, so whatever instructions there were seem to have resulted from segments of conversations which were either conducted with him or, as the major part of the evidence was, when his wife was sent away by the solicitor then acting to see whether there was anything he wished to say to her about what was on the tapes.
So whatever may have been gleaned in that regard was not done so in any structured or way in which they could be properly informed as to what his version of events was. I think that is ultimately what Justice McMurdo was saying in that conclusion. If I can take your Honours to some evidence on that at page 895 of the record book.
KIRBY J: Where are you in the structure of your argument now? Is this proviso arguments?
MR BYRNE: No, I have not finished laying poison, to use your Honour’s term, if I can go back. Perhaps to put it in context, could I say this before I take your Honours directly to that. The problem with the fundamental understanding of what the law was was not something which seems to have been the focus of the decision of the Court of Appeal. Their inquiry was upon whether or not it was objectively reasonable to not call the appellant to give evidence and that is apparent at paragraph 66 of the judgment.
The real issue, that is the fundamental error, we say, was not discussed but the issue as to whether or not to give evidence, in our respectful submission, was also not properly addressed in the sense that the Court of Appeal did not consider whether the appellant made, what has been called in this Court, an informed decision not to give evidence. We have referred your Honours to the decision in special leave in the matter of Cumberworth and, more directly, in TKWJ her Honour Justice Gaudron states this most clearly, at paragraph 32:
An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial.
We emphasise the words “informed and deliberate”, “informed” being, in our submission, the key word. Here, on the material, the appellant could not have made an informed choice due to the simple fact that his counsel did not understand the elements of the offence which he had to meet. So that precludes what we say is an informed choice whether or not to give evidence. But even further, the present situation is that his legal officers adopted – his advisers adopted a tactic of obtaining what were described as open instructions from him and, by open instructions that means something which is, in our submission, mutually exclusive of the concept of an informed decision.
GLEESON CJ: That, of course, is not limited to an informed decision by the accused.
MR BYRNE: That is so.
GLEESON CJ: I mean, decisions about whether to object to evidence, for example, are almost never taken after consultation with a client.
MR BYRNE: But it could not have been an informed decision even by counsel here, given the submissions we have made, and that flows on.
GLEESON CJ: I understand that.
MR BYRNE: Yes. The open brief, if I can give your Honours the reference - it is record 895, lines 45 to 52. Question, and this is solicitor then acting:
“I also explained to Ann Nudd –
that is the wife of the appellant –
The benefit of Kevin providing open instructions to me to defend the trial.”?-- Mmm.
“Ann Nudd understood that this meant that Kevin would not provide any specific instructions in relation to any matters and that he would allow Mr Laws and myself to use our discretion in putting the Crown to prove and inviting the jury to draw different inferences on the evidence then put forward by the Crown.”
The tactic precluded, in our submission, any informed choice being made by the client, or by the appellant in this case. To go back to the point your Honour the Chief Justice makes to me that the difficulty with that being an informed choice by counsel is that he simply misunderstands what the law to be – what the law is.
GLEESON CJ: What is the legal relevance of the circumstance that that misunderstanding was the result of incompetence? Would it make a difference if competent experienced counsel made a mistake of law – I am not talking about this particular mistake – but made a mistake of law and encountered an adverse direction of the kind received here, but it was not one that involved incompetence? What is the legal relevance of the incompetence as distinct from the mistake?
MR BYRNE: The significance seems to be this, to answer your Honour’s question, to go back to a comment made in the judgment of Justice McHugh in TKWJ in paragraph 80. His Honour said this:
Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice -
referring back to your Honour’s judgment in Birks. The question seems to be focused more on the latter part of what your Honour puts to me, whether there has been a miscarriage of justice. It is just more easily established if that is demonstrated to be by way of incompetence and not involving any forensic tactical decision, whereas here there could have been no rational tactical decision for conducting the trial in the way it was.
Your Honours, we have referred to the way the defence was run. We have referred to the ground being cut out from underneath that immediately after the conclusion of the address. The impact of that, in our submission, is best described by reference to a passage in Ali v The Queen and this is a passage at paragraph [104] in the joint judgment of your Honours Justices Callinan and Heydon where this is said:
Such errors as may have been made by trial counsel in this . . . case against the appellant were not egregious ones. They could have had very little or no impact upon the trial, and the jury’s view of the appellant’s guilt or innocence. Such impact, if any, as they may have had could only have been slight and temporary. That impact was capable of being cured, and was in fact cured, by the trial judge’s careful and repeated instructions –
We say the reverse is the situation here. What the error - the primary one which was made was egregious. It was something which was not slight and temporary and its impact, far from being cured by the trial judge’s directions, the trial judge’s directions really meant that the error left no defence open to the appellant and he accordingly suffered a miscarriage of justice.
HAYNE J: What was the evidence that was led at trial that revealed that it was the accused who was the voice on the tapes?
MR BYRNE: The evidence was that the tapes were played and then there was a passage which I have referred your Honours to where counsel said well, the accused has not remained silent and then after the judge raised with trial counsel whether or not those were his instructions, he said they were not and further instructions were taken and he informed the court that they had become his instructions. I am reminded there was evidence of a witness who was standing close to the witness Nudd when one of the conversations was allegedly – the time match was good.
HEYDON J: Did the appellant deny giving the instructions that the admission supposedly followed?
MR BYRNE: There is, if I can turn it up, a passage in the record book in which there was actually a tape recording of the obtaining of those instructions by the legal advisers from the appellant.
HEYDON J: In court?
MR BYRNE: No, out of court.
HEYDON J: But adjacent to the court.
MR BYRNE: Yes, and I think it is a fair summary of those to say the appellant was not happy, but the damage had been done and he accepted that he had no option but to live with it.
HEYDON J: Do you know what page that is?
MR RAFTER: I have not seen an affidavit like that.
KIRBY J: But Mr Byrne’s point is that it is the client’s choice ultimately, and a point that you also made, and that it has to be an informed choice, and his complaint is that it was a choice that was made but that it was not informed because he was not informed accurately and correctly about the state of the law of the charge that he was looking down the barrel of a life imprisonment on.
MR RAFTER: Yes, but viewed objectively, with respect, the decision to recommend not calling him was reasonably open, especially in circumstances where, although he might have been able to offer paragraph 36 – which is not a great deal more than what the lawyers themselves knew in any event – what he could not do was explain the damaging telephone intercept evidence against him, and I have taken your Honour to the passage where that was relayed to the lawyers. Admittedly it was, I think, on day two of the trial but not much happened on day one. It was certainly early enough for some steps to be taken to attempt to place evidence before the court in the defence case that would have explained away that damaging evidence. He could have given that. He was really the only one who could provide an explanation, one would think.
KIRBY J: But every time he says he tried to say something to Mr Laws, Mr Laws said, “Don’t tell me anything. I don’t want to be embarrassed.”
MR RAFTER: That is not accepted by Mr Laws of course. He was able to say enough about the contents of paragraph 36 to Mr Laws nevertheless. The omission of reference to New Zealand, for example, was also not mentioned to his wife, a surprising thing. There are some strong indicators, although the Court of Appeal did not deal with the case on this footing, that the New Zealand proposal was very much a recent fabrication made after the event in light of the query that the jury raised.
GLEESON CJ: I still cannot see where it is made.
MR RAFTER: Yes. It might have been the origins of his thought processes.
KIRBY J: Something must have triggered it ‑ ‑ ‑
MR RAFTER: But it certainly did not in fact go as far as the appellant would currently have it.
GLEESON CJ: Exactly.
KIRBY J: Something must have triggered the jury’s question. The jury would not ask the question out of the blue with no foundation at all.
GLEESON CJ: Did the jury’s question refer to New Zealand?
MR RAFTER: No. With respect, your Honour, it is difficult to read too much into the jury question. As I indicated before, juries ask all manner of questions of trial judges and sometimes the lawyers involved in the trial have no idea where the query has come from, it does not reflect the way in which the case was conducted ‑ ‑ ‑
GLEESON CJ: It only needs to come from one juror.
MR RAFTER: Yes.
GLEESON CJ: Juries do not have to be unanimous about the questions they ask.
MR RAFTER: So it does not really tell us much about the thought processes of the jury. They asked that question and they got an answer. That is really as much as we can say. In the Court of Appeal Justice McMurdo dealt with the substance of the defence address in a number of places. I will not read all of this out, but if one goes to 1009 paragraphs [34] through to [39]. This really reflects the way in which the case had been put by the trial judge, recognising the arguments that had been put forward by counsel. At 1011, paragraph [45]:
Counsel then emphasised the absence of any evidence of the appellant’s actions after his meeting with Jackson on 7 March.
Then at paragraph [46] the absence of motive was referred to, that:
“the real plan was something entirely different and beyond the knowledge of the (appellant)” –
and he did make that point. One sees that in the course of the address.
“the real plan was something entirely different and beyond the knowledge of the (appellant)” –
They were arguments worthy of some consideration, as the Court found. Paragraph [48] Justice McMurdo explains at about line 28 – perhaps going back to line 25:
If counsel did address without a proper understanding of what was meant by “knowingly concerned in”, nevertheless he developed an argument which was consistent with the relevant law, which was that the taped conversations, as they might be interpreted, did not require the jury to infer that the appellant was a participant.
That was the way in which the argument was framed and that was the core argument worth being considered and the jury did indeed consider them. They were out for some time. Nowhere in the summing‑up or elsewhere was it suggested that the nature of the defence address had been to throw the towel in and concede that there was no available argument for the appellant at all.
CALLINAN J: Mr Rafter, were the appellant’s antecedents put before the Court? Was there a document?
MR RAFTER: No, I think ‑ ‑ ‑
CALLINAN J: What do we know about his ‑ ‑ ‑
GLEESON CJ: He had no prior criminal history.
MR RAFTER: He certainly had no prior convictions.
CALLINAN J: I knew that, but do we know what his occupation was, or his education and his age, his degree of sophistication?
MR RAFTER: Well, there would have been submissions put forward about that, but I am not sure they ‑ ‑ ‑
GLEESON CJ: It will be in the remarks on sentence, will it not?
MR RAFTER: To the extent that her Honour summarised them.
GLEESON CJ: Or that is where you would expect to find it.
CALLINAN J: There is very little I think about that. Certainly there is a reference to the absence of conviction. I ask it because, for example, at 934 he has signed the handwritten document:
After discussing at great length the pending issue of my committal hearing with both you & Anne, I have decided to seek a paper committal.
And then, of course, there are the other things that he agreed to, the agreed statement of facts.
GLEESON CJ: The evidence shows, does it not, that he was in contact with other lawyers as well?
MR RAFTER: Yes.
GLEESON CJ: That issue of whether there would be a paper committal was one that he took up with some other legal friends of his who advised him differently from Mr Laws and it nearly led to Mr Laws getting the sack, did it not?
MR RAFTER: And certainly he went to Mr Laws because of an express concern about the cost of conducting a fully‑blown committal proceeding and Mr Laws made a decision objectively quite reasonable on the material that there was no need to entail a fully‑blown committal hearing cross‑examining all of the witnesses.
CALLINAN J: Do we know his occupation and any of those matters that I asked about?
MR RAFTER: I think he was described as a businessman at 318.
GLEESON CJ: There is not any suggestion, is there, that he was a person lacking in sophistication?
MR RAFTER: No.
CALLINAN J: No, and there seems to be some material to suggest that he – to the contrary.
MR RAFTER: Your Honour Justice Callinan asked a few moments ago about an antecedents document. Although there was no document as such the antecedents information is provided at 318.
CALLINAN J: At which page?
MR RAFTER: Page 318. We see there his date of birth, his place of birth.
CALLINAN J: Your voice slipped away.
MR RAFTER: At 318.
CALLINAN J: Thank you.
HEYDON J: And at page 337, Mr Laws sets out a sort of biography of the appellant. He was educated in Queensland, left Australia in 1987 to take up residence in the United States. In that time he carried on business in building and construction and buying and selling cars. He used false papers because he was not eligible for a green card. He was educated only to grade 10. Before he went to America he was self-employed as a painter and decorator. He saw better opportunities in the United States.
GLEESON CJ: He was aged 45, so in that respect he was a young man.
MR RAFTER: Yes, his date of birth was 12 August 1957. As to Justice McMurdo’s assessment of the arguments, the only other passage I would take your Honours to is at page 1021, paragraph [70] and his Honour said there that:
Whilst those conversations demonstrated a knowledge of the venture, the prosecution case depended upon proof that the conversations had to be interpreted in a certain way
and the arguments put forward, as his Honour says at line 20:
the core argument, which was that the jury could not be satisfied from the tapes that the accused was a participant in this venture, was worthy of serious consideration and it was not without any prospect of success.
So that really reflects the way in which the arguments had, indeed, been put by the learned trial judge. Your Honours were taken earlier to the judgment in Sankar ‑ ‑ ‑
GUMMOW J: Any material that shows whether the appellant is an Australian citizen? He was born in the United Kingdom, lived in New Zealand, then in the United States.
MR RAFTER: I cannot be sure about that, your Honour, I am afraid. The material does not, on my understanding of it, allow one to say one way or the other. Your Honours were taken earlier to a passage from the decision of the New Zealand Court of Appeal in McLoughlin. The passage is set out in Sankar v State of Trinidad and Tobago [1995] 1 WLR 194 at 200. My learned friend read out that passage from the judgment of Justice Hardie Boys. One aspect of the passage there says:
certainly counsel may not take it upon himself to disregard his instructions and to then conduct the case as he himself thinks best.
There may be some tension between that passage and what one sees in Birks, particularly at point 2, that as a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client and it is not a ground for setting aside a conviction that decisions made by counsel are made without or contrary to instructions or involve errors of judgment or even negligence so the approach here may be a little different, with respect.
GLEESON CJ: Those paragraphs in Birks were all in explanation of paragraph 1 which fastened on miscarriage of justice and were explaining that what is a miscarriage of justice has to be considered in the context of the adversarial system of justice.
Can I come back again to the Court of Appeal in Queensland in this case. If on a proper analysis of the facts any prospect of a successful defence depended upon persuading the jury at least to the point of having a doubt that those taped conversations did not reveal or were not sufficient to establish participation in the venture, that would explain, would it not, why the Court of Appeal paid so much attention to the decision not to call the appellant to give evidence?
MR RAFTER: Yes, exactly.
GLEESON CJ: Because the moment the appellant got into the witness box and subjected himself to cross-examination about those taped conversations, then that would become the focal point of the trial.
MR RAFTER: Yes, and he was unable to explain those taped conversations pre‑trial. Now, one can be critical of some aspects of the procedure that led to that instruction being given but it is worthy of note that he remained unable to explain the taped conversations by the time the
matter got to the Court of Appeal because, even well represented, he made no attempt to explain the incriminating passages in those tapes beyond putting forward the general matters in paragraph 36 of the affidavit, so his inability to explain the damaging statements is likely correct. Nothing changed between trial and appeal, with respect.
As Justice McMurdo indicated in the judgment in the Court of Appeal, any proof of evidence was assumed would have contained no more or no less than what one sees in paragraph 36 itself because that was all he offered there. The other decisions that have been referred to here, Sheppard and the South Australian decision of Kyriacou, with respect, are just examples of a particular application of the principles to a particular set of facts and they do not really avail the appellant in this particular case.
Kyriacou, with respect, involved a particular unusual set of facts and Sheppard was simply a case where there were several witnesses, not to the assault itself, but to admissions made about it by the appellant in the absence of a serious challenge to direct admissions, particularly to the evidence given by a witness who had given a statement on the morning of trial or the day before trial. There was no significant prospect of an acquittal. That was in response to direct evidence of an admission to the offence itself.
Here we had conversations that could not be disputed. They were on tape but they were cryptic and in code and the issue really became what interpretation was placed upon them. So the other cases, with respect, do not assist much. The South Australian case was one involving an appellant who had an explanation for otherwise incriminating circumstances, his explanation not being lacking in substance or detail. So it is a different type of case, with respect. Those are my submissions.
GLEESON CJ: Thank you Mr Rafter. Yes, Mr Byrne.
MR BYRNE: If the Court pleases, there is only one matter and it is not a new matter. It is a matter I referred to during the course of submissions, but your Honour the Chief Justice raised with my learned friend the issue of delving into the brief of counsel and how that is dealt with. Can I refer your Honours to Sheppard, paragraph [15]? That is the current approach of the Court of Appeal of Queensland to that matter. As I say, I referred the Court to that before but in light of your Honour the Chief Justice’s question I thought that I should just emphasise that.
GLEESON CJ: Thank you. There is a question I would like to ask you, Mr Byrne.
MR BYRNE: Yes, your Honour.
GLEESON CJ: If it was such an important part of your client’s case that he thought this vessel was on its way to New Zealand, why does he not say so in paragraph 36 on page 684?
MR BYRNE: I can only answer that in this way. It seems to have been assumed by those involved that that is what he was doing and that appears in the cross‑examination at page 688. This is a cross‑examination by the Crown of the appellant.
GLEESON CJ: But he does not say it, does he?
MR BYRNE: He does not say it in those terms, that is quite so, but the question asked by the Crown – at least their perception of it – and this is 688, line 5:
I think you just told us that in relation to what you now say in paragraph 38(b) about Jackson taking chemicals to New Zealand, that you did not mention that to either of your lawyers; is that the case?-- That’s true, yes.
GLEESON CJ: And I think the Court of Appeal dealt with the matter on that basis, which at the moment seems to me to be unduly favourable to the appellant.
MR BYRNE: That is certainly the way it was perceived and dealt with, your Honour, yes.
GLEESON CJ: Because it seems a fairly striking omission from paragraph 36 if that was a central point in the defence that was never put.
MR BYRNE: The other aspect of that though is, in our submission, without rehashing the argument, there is nothing in the admissions – I am sorry, let me rephrase that. The taped conversations and the statements there, there was nothing seemingly inconsistent with what is in paragraph 36.
KIRBY J: It may be that part of the explanation here – and I am not sure about this – is that both the Crown and the accused in the Court of Appeal of Queensland under this procedure tiptoe round the trial issues and focus, as far as they can, on the alleged incompetency issues and do not try to get too deeply into the trial issues lest that do an unfairness to the accused in a subsequent trial. That trial is accusatorial in character; it is not strictly adversarial.
MR BYRNE: I believe that was the approach on both sides, at least in the Court of Appeal, your Honour, yes.
GLEESON CJ: In paragraph 36 it was settled by senior counsel.
MR BYRNE: Yes, it was.
KIRBY J: At that stage he had good counsel.
MR BYRNE: So my friend says, your Honour.
KIRBY J: There were good counsel on both sides.
CALLINAN J: I see, Mr Byrne, that Mr Laws in your conference with him adhered to the erroneous view of the law that he had expressed during the trial. He argued with you for its inclusion as a ground of appeal.
MR BYRNE: It does not seem to sit well with being familiar with Tannous.
GLEESON CJ: Persistence is sometimes regarded as a virtue – not by everybody.
CALLINAN J: Well, there have been some cases, one here, where there has been a lot of authority the other way.
GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow morning.
AT 4.00 PM THE MATTER WAS ADJOURNED
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