Nudd v The Queen
[2005] HCATrans 162
[2005] HCATrans 162
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B36 of 2004
B e t w e e n -
KEVIN PHILIP NUDD
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 9.32 AM
Copyright in the High Court of Australia
MR M.J. BYRNE, QC: May the Court please, I appear with my learned colleague, MR C.J.N. EBERHARDT, for the applicant. (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 Commonwealth Director of Public Prosecutions)
MR BYRNE: May the Court please, the application is sought in these circumstances where an accused person is charged with a serious offence against Commonwealth law, and the three scenarios which we put forward are these. Counsel has not taken the accused’s instructions because such instructions might interfere with the way in which counsel wishes to conduct the trial. Counsel then proceeds to conduct the trial on the basis of a fundamental error as to an element of the offence. Thirdly, all tactical forensic decisions are made by defence counsel on the basis of the error of law and in the ignorance of an accused’s instructions.
We ask in those circumstances whether (a) the accused, who was serving 22 years, has had a fair trial; (b) whether it could objectively be said that any competent counsel would have so acted; and (c) was there in the course of the trial, or before the trial, any rational informed choice by the applicant, which are the tests enunciated by this Court as to whether or not a miscarriage of justice has occurred.
KIRBY J: Just clarify for me the fact that no statement was apparently taken of your client and it is said that that is justified because of counsel’s desire to avoid embarrassing instructions, but during the course of the trial the judge asked, “Is what you’re putting put on instructions?” So it does not seem that that is a very good tactic, or useful tactic for avoiding that sort of question, which is bound to arise. Just tell me what happens in practice in that respect?
MR BYRNE: What seems to have happened, your Honour Justice Kirby, in this situation is that, as the Court of Appeal has found, and the reference is at application book 190, line 15, the trial counsel deliberately did not take instructions. Then, as your Honour points out to me, it was, as I understand the scenario, during the course of final address by defence counsel when he made a concession which was reasonably important, namely, whether the voice on the tapes was that of the applicant – he firstly denied that he had said that, then said if he had said it it was by way of semantic error and then confirmed that if he did say that in any form it was not on instructions. The matter was then adjourned and he apparently obtained instructions as to confirm or ratify the concession already made. The difficulty ‑ ‑ ‑
HAYNE J: Now, does that mean that point, as a singular point, goes away?
MR BYRNE: We say, your Honour, that the trial has miscarried well before one gets to that point.
HAYNE J: I understand that is the submission, and therefore this question about confirming or not confirming the voice is perhaps a distraction.
MR BYRNE: It is an illustration, if anything. It is not something on which we rely as being determinative of the appeal.
KIRBY J: I just asked it because the theory that was advanced for not taking a proper proof from the client, which seems on general principles to be a problem in the presentation of a case, but the suggestion is that it was excused in this case because this is a criminal trial where you have conceded, properly I think, that there was strong evidence against the accused and that counsel did not want to be contaminated or embarrassed by taking a full proof.
MR BYRNE: The difficulty with counsel not being contaminated by a full proof is that all decisions he then made were on his own case theory, which he developed, and that case theory, whilst it may have appeared attractive to counsel given his apparent understanding of what the elements of the offence were ‑ ‑ ‑
KIRBY J: Well, they were just fundamentally and rudimentally wrong.
MR BYRNE: Yes.
CALLINAN J: That seems to me, Mr Byrne, speaking for myself, to be your best point, that from beginning to end counsel did not even know what the fundamental principles were. It is difficult to see how the whole conduct of the case was not infected by that ignorance.
MR BYRNE: Your Honour, with respect, sums up what our point is. Counsel, labouring under that fundamental defect, whatever he did and whatever decisions he made including ‑ ‑ ‑
CALLINAN J: Including whether to take instructions or not to take instructions, whether to obtain a statement, how to address the jury, how to cross-examine ‑ ‑ ‑
MR BYRNE: Whether or not the accused ‑ ‑ ‑
CALLINAN J: Whether to call the accused ‑ ‑ ‑
MR BYRNE: Yes, precisely.
KIRBY J: Now, where does the Court of Appeal deal with that point? They deal with the question as to whether or not there was a rational reason that would justify not calling the applicant, and that is a matter that is raised for consideration in TKWJ.
MR BYRNE: Quite so.
KIRBY J: They deal with that – and one can agree or disagree – but that is thoroughly dealt with. But where do they deal with Justice Callinan’s point, that it is fundamental to the proper presentation of a case that counsel should understand the elements of the offence and not address the jury to be corrected by the trial judge on an erroneous view of the elements of the offence?
MR BYRNE: Your Honour, they do not appear, with respect, to address that directly. What the Court of Appeal appears to have done is to look at those matters raised by Justice Callinan as part of the background and say, “Let’s assume that they are the background circumstances”. An objective, competent counsel could, even having ignorance as to a fundamental point, not having instructions, have somehow run a defence which looked at objectively was reasonable.
HAYNE J: But the question is not one of examining counsel’s conduct ‑ ‑ ‑
MR BYRNE: No ‑ ‑ ‑
HAYNE J: The question is whether the accused had a fair trial.
MR BYRNE: Quite so.
HAYNE J: What was it that followed from this ignorance that infected the trial? What happened at trial that went awry, whether because of this ignorance or otherwise?
MR BYRNE: What happened at trial was that the whole defence was allowed to develop by counsel without instructions based on the fundamental error. That pervaded cross‑examination, it pervaded what evidence was to be brought out or emphasised in the course of the defence case, whether or not to call the accused person to give evidence and the format of the address.
Now, the point that your Honour raised with us before shows that because it is really in the course of the address when two things which show what went wrong with the case arise. One was the one your Honour mentioned to us; namely, the tacit admission or real admission, or concession, as to the voice on the tapes but, more importantly, where counsel addresses the jury saying, “There is no practical assistance here. We concede and we admit that there was assistance. We concede and admit that it was our voice talking about giving that assistance, but our defence is that was not practical advice.” Now, that is the fundamental error.
HAYNE J: But does that not then come to the point of whether, as the evidence opened and emerged at trial, without the accused going into the box, whether there was available any explanation consistent with innocence? That is, do we not end up at the point whether conviction was inevitable?
MR BYRNE: Conviction was inevitable the way the trial was conducted by defence counsel, but ‑ ‑ ‑
HAYNE J: I understand that, but on the evidence as laid out – as it emerged at trial, was there an available argument to put?
MR BYRNE: The available arguments really emerged in the Court of Appeal because that was the first time that lawyers acting for the applicant sought his instructions as to the factual background of the case. Once that was done the affidavit placed before the Court of Appeal raised a number of defences, which included disassociation, knowledge of what was on the boat, destination of the boat, all of those things which could and should have been explored by counsel if counsel and solicitor had asked for instructions from the applicant as to what his account was.
One could not, in our respectful submission, have a fair trial where lawyers are allowed to conduct a folly of their own, or a frolic of their own, based on the way they wish to run a case, uninhibited by either instructions or (b) the true defence in the case.
KIRBY J: What are we to read into Justice McMurdo’s statement at paragraph [70], where he says:
In my view this was a strong Crown case, but it goes too far to say that there was no prospect of an acquittal absent evidence from the accused.
CALLINAN J: It seemed to me to be an odd approach by his Honour. I know what he is doing in paragraph [72], a similar theme has developed ‑ ‑ ‑
KIRBY J: But I wonder if that does not help you in the sense that his Honour is saying that there was a case that could have resulted in the acquittal of the accused, even on what was put to the jury - that is what he is using it for – but one would think even stronger, if potentially he has his case put to the jury as he now asserts in paragraph 36 of his affidavit.
MR BYRNE: That is so. In fact, the jury were out some 24 hours it would seem, even given the strong case, which we have conceded, on the basis of what his Honour Justice McMurdo is talking about in paragraph [70]; namely, the interpretation, if you like, of the transcripts and the codes said to be used in them. But also contained in those transcripts, had defence counsel taken instructions, are references to “city of boats”, which we would submit would be Auckland – hence the destination, the jury’s question – all matters which give some objective and rational support for what the applicant’s instructions ultimately turned out to be.
CALLINAN J: Mr Byrne, in paragraph [72] his Honour says a decision not to call the accused was a decision that could have been taken. Now, it seems to me, with all due respect, that that may not be the correct approach, bearing in mind, as Justice Hayne has pointed out, that the ultimate question is ‑ ‑ ‑
MR BYRNE: Whether there is a fair trial ‑ ‑ ‑
CALLINAN J: And whether there ‑ ‑ ‑
MR BYRNE: ‑ ‑ ‑ or a miscarriage of justice.
CALLINAN J: ‑ ‑ ‑ has been a chance of acquittal that has been lost. But neither of those tests seems to have been applied in fact by Justice McMurdo to at least the question of calling or not calling the applicant.
MR BYRNE: That, with respect, Justice Callinan again seems to be correct. The Court of Appeal appears to have been distracted by a line of authority, which your Honours may have seen. There were two cases called R v N which followed shortly thereafter, or after each other – both of which seemed, on the interpretation given, to hinge on whether the decision to call or not to call the accused was a determinative factor in the appeal. What his Honour Justice McMurdo, who gives the principal judgment in the Court of Appeal in this case, seems to refine and reduce the issue back to that point. What we say, and what we have attempted to say in the written outline is that the trial has miscarried and that has not been a fair trial before one gets to that point, and that is simply a culmination of the fundamental error of law and the lack of instructions to get there.
KIRBY J: Help me with this. In TKWJ the ultimate test of miscarriage of justice is posed whether conviction was inevitable; that is a sort of proviso test ‑ ‑ ‑
MR BYRNE: It seems to be, your Honour.
KIRBY J: And Justice McHugh goes on to say, “But there will be cases where the conduct of counsel is such that there has not been a trial at all, there has not been a fair trial at all”. That is very similar to some things his Honour has said in proviso cases. Now, do you understand that to be, as it were, a mirror image of the proviso authorities? Are there two questions, or is it really all one question?
MR BYRNE: No, we answer it in this way, that there may be certain features in a criminal trial which by themselves would indicate that there has been a miscarriage of justice because there has not been a fair trial or, as Justice McHugh appears to say in TKWJ, where there are simply fundamental errors such as not cross-examining a particular witness or not addressing, then that by itself must inevitably lead to a trial which is not fair.
What we say here is, adopting Justice McHugh’s test, there was no real cross‑examination of witnesses because counsel was not aware of instructions or the law and there was no real address because the address on the understanding inculpated rather than dealt with what the true elements of the offence were.
KIRBY J: Have there been cases on TKWJ where either of those two criteria have been held to be established in the intermediate courts? Are you aware of any such cases?
MR BYRNE: We have done searches and we have not been able to find that particular issue addressed.
KIRBY J: But have there been cases where the incompetence of counsel has been such that the conviction has been set aside and a new trial ordered?
MR BYRNE: I guess there have. There is a range of cases. In the Court of Appeal in Queensland there is what is reported now as R v ND [2004] ‑ ‑ ‑
KIRBY J: I suppose it is inevitable we get them when it is refused, so that we do not see the cases where it is upheld.
MR BYRNE: Yes.
KIRBY J: But you say that by the TKWJ test there have been cases where the conviction has been quashed and a new trial ordered?
MR BYRNE: Yes. The Court of Appeal does not appear here to have rejected the TKWJ test, but even the ‑ ‑ ‑
KIRBY J: Well, it cannot. We have not come to that, Mr Byrne.
MR BYRNE: ‑ ‑ ‑ passage by Justice McHugh, I was trying to refer to, which his Honour seems not to stand alone, certainly, to perhaps say something which does not find the support of other members of the Court.
KIRBY J: Yes.
MR BYRNE: But could we also say that as recently, as your Honours would be aware, in Ali v The Queen the point we looked at, but that is quite a different category of case. That was where there was objectively explanations for what counsel did, and we would stress that there in the joint judgment of your Honour Justice Callinan and Justice Heydon in paragraph 100 that the strength of the Crown case is something which emphasises the need for a fair trial; it does not do away with it, and that is so be it a proviso case or whether there has been a miscarriage of justice in the incompetence of counsel situation.
HAYNE J: In the end does your case come to a Tuckiar Case, that this is parallel to the situation in Tuckiar? Counsel’s conduct in the final address in effect emphasised the guilt of the accused.
MR BYRNE: Yes.
KIRBY J: Yes, well I think you see the way the wind is blowing. Thank you very much.
MR BYRNE: There might be a change coming ‑ ‑ ‑
KIRBY J: It does happen. Yes, Mr Rafter.
MR RAFTER: Thank you, your Honour. As to the issue concerning the applicant’s voice on the tape recording – and I say that really does become somewhat of a distraction because the concession made was quite properly made ultimately and made on express instructions from ‑ ‑ ‑
KIRBY J: I only raise that because of the curiosity that I have as to the thought that we can have a practice in Australia where trial counsel do not take the proper statement; it just seems rudimentary, and I just wanted to understand is this a common practice in criminal trials, “We do not want to take a statement, we do not want to know what his case is, we do not know what his defence is because it might embarrass us later.” I mean it does not seem a very rational way that counsel should be able to go off and run their own theory.
MR RAFTER: Although it is open to an accused person to give instructions to simply put to the Crown proof ‑ ‑ ‑
KIRBY J: Of course. That is a different matter.
MR RAFTER: Those express instructions were indeed given here and, as I will develop a little bit later, the mainstay of the prosecution case was the telephone intercepts. Those were supplied to the applicant’s wife, who was described as his sole authorised agent. He gave express written instructions that all instructions were to go through his wife. She ultimately reported to the solicitor that he was not able to provide any answer to the damaging statements contained in those telephone intercepts ‑ ‑ ‑
CALLINAN J: But should he have been in that position, and would he have been in that position if the elements of the offence had been explained to him? He could have remained silent on all of these matters.
MR RAFTER: And he did.
CALLINAN J: But he was placed in the position of having to affirm or deny whether it was his voice on the tape at a very, very late stage of the trial, after his counsel had addressed. That is a situation that in all probability would not have arisen had ‑ ‑ ‑
MR RAFTER: The complaint, your Honour, though was that a concession was made in the course of address ‑ ‑ ‑
CALLINAN J: I know.
MR RAFTER: ‑ ‑ ‑ that it was not the applicant’s voice on the tape.
CALLINAN J: But that concession at that time was not then made on instructions, was it?
MR RAFTER: Not on instructions at that time. Of course the authorities ‑ ‑ ‑
CALLINAN J: And the need to obtain instructions in relation to that only arose because a concession had been made not on instructions.
MR RAFTER: True. Of course it is not a ground for setting aside a conviction ‑ ‑ ‑
CALLINAN J: No.
MR RAFTER: ‑ ‑ ‑that some aspect of the case is conducted without instructions, or even ‑ ‑ ‑
CALLINAN J: No, but you refer to this aspect of the matter at the beginning of your submissions.
MR RAFTER: But if I could perhaps go to ‑ ‑ ‑
HAYNE J: The whole burden of TKWJ and the authority of TKWJ is that an appeal in a case of this kind is not an inquiry into counsel’s conduct.
MR RAFTER: That is right, and ‑ ‑ ‑
HAYNE J: It is an inquiry into the conduct of the trial.
MR RAFTER: R v Birks - and the relevant passages are set out in the application ‑ ‑ ‑
HAYNE J: Well, Birks has been overtaken by TKWJ. That is where we find the learning in this Court.
MR RAFTER: That is true, but it is still helpful to go to it – I will not read out the passages. They are set out in Justice McMurdo’s judgment at page 190 of the application book in paragraph [52]. The most recent decision of the courts on the subject is Ali v The Queen, and if I can go to paragraph 17 of your Honour Justice Hayne’s judgment, your Honour said:
Much of the argument on the hearing of the appeal proceeded from the premise that the determinative question was whether counsel who appeared for the appellant at trial had been flagrantly incompetent. To identify the issue in that way has at least two difficulties. First, there is an evident difficulty in giving content to the pejorative expression “flagrantly incompetent”. Secondly, and more fundamentally, framing the issue by reference to the quality of trial counsel’s conduct diverts attention from the question presented by s 668E of the Criminal Code (Q), namely, whether the Court of Appeal should have found “that on any ground whatsoever there was a miscarriage of justice”.
HAYNE J: Now, as to that, why is this not a Tuckiar case?
MR RAFTER: Well, can I perhaps go back to the telephone intercept conversation. The concession made in address without instructions, and ultimately confirmed by instructions, was not a concession that led to any miscarriage of justice, given one of the telephone conversations that the applicant took part in, he was actually a witness to the telephone box in the United States of America by a witness who gave evidence in the trial. He was a party to that conversation. The timing of the conversation was consistent with him having been party to it.
So to attempt to argue that it could not be established that it was his voice on the telephone intercepts was a fruitless argument and not likely to ‑ ‑ ‑
KIRBY J: Yes, but let it be accepted that it was his voice. Is there anything in the telephone intercepts that is inconsistent with the alternative theory, which was he did not know that the drugs – and did not intend that the drugs were to come to Australia but to New Zealand, and he thought the drugs were of a particular kind of chemicals and not the drug charged.
MR RAFTER: Your Honour, not surprisingly, the telephone conversations were in…..code.
KIRBY J: Cryptic, yes.
MR RAFTER: And they were somewhat cryptic. The effect of them was set out comprehensively in Justice McMurdo’s judgment. For instance, one of the conversations concerned the fact that Jackson, on arrival in Australia, had been scanned and a drug had been detected. That conversation is set out at the top of page 182. The applicant’s response in relation to what was described by Jackson as having been supplied with a “swiper” was to say:
“if the bad guys have got these things why can’t the good guys buy ‘em . . . there . . . must be some way where we can buy one ‘cause . . . there’s a lot of business involved”.
Now, there was constant communication between Jackson and the applicant. It concerned the false passport which was described variously as “blue credit cards”. A new “Bible” was discussed. Those conversations appear on page 182, paragraph [21] and paragraph [23]. There was a meeting at the Los Angeles airport between the applicant and Jackson. There was an argument on one occasion between Velarde, who was the person who arranged distribution of the drug in Australia, and Jackson, the applicant had commenced that conversation. That was one that was observed by the ‑ ‑ ‑
KIRBY J: Well, there is somewhere here where Justice Philip McMurdo says that the troubling question is whether or not, consistent with the transcript but also consistent with paragraph 36 and the new way, or the way in which the accused says he wanted his case presented, you could have woven a path that was consistent with the intercepts but compatible with paragraph 36 of what the accused says were the facts that were never put before the jury or considered by them.
MR RAFTER: One of the difficulties of course was the whole conduct of the case was affected by an assessment made that the applicant was unlikely to be an impressive witness. He agreed in that assessment himself. His wife, who was described had written instructions as his sole authorised agent, agreed in that. So there was going to be ‑ ‑ ‑
KIRBY J: Yes, but that was made against a background of a fundamental misapprehension of the nature of the offence and of the elements of the offence.
MR RAFTER: The conduct of the defence was also affected by the applicant’s inability to provide any answer to the incriminating conversations. One of the conversations concerned what was described as damaged building supplies and to about 30 per cent of these Italian tiles as being broken. Now, there was no suggestion at trial, nor before the Court of Appeal that that conversation related to any genuine building products. The evidence revealed that 30 per cent of the cocaine had become contaminated by water. So, again, it is another illustration of the parties speaking in code about the subject matter of the importation.
As I say, the conduct of the case had to be affected by an assessment of the applicant’s performance as a witness. Any defence case is dictated by that, largely. Moreover, the inability to provide any answer to the incriminating telephone intercept evidence produced another problem. The applicant had given written instructions to put the Crown to proof and to provide what was called “an open brief” to conduct the defence case in accordance with the ‑ ‑ ‑
HAYNE J: Well, what follows from that? What is the consequence of that instruction?
MR RAFTER: All of those things are relevant whether or not a miscarriage of justice was established before the Court of Appeal.
HAYNE J: But unless you go to the point of saying that that authorised what counsel did, where does that set of instructions take us? Anywhere?
MR RAFTER: Well, again, another relevant feature is that there were written particulars supplied by the prosecution. They were read out to the applicant by the solicitor and the solicitor gave evidence that the applicant and his wife, who was then present, appeared to understand the effect of the basis that the Crown case was being conducted.
KIRBY J: But the Court of Appeal focused substantially on the question of whether there was a rational explanation of the failure to call the applicant, and one can agree or disagree with their analysis, but that is what they are focused on. But they do not, with respect, seem to have addressed all the other questions; the failure to take a statement, the failure to understand the specific defence, the failure to consider the elements of the offence of knowing concern, the failure to object to parts of the tape, the statement in the final address which was embarrassing to the applicant’s case. I mean they appear to have just focused on the failure to call the applicant. I can understand what they have said, and what you are now saying, but you have to look at the whole complaint.
HAYNE J: Well, is that the only complaint that was made at the Court of Appeal?
MR RAFTER: Well, there were a large series of complaints made.
HAYNE J: I thought so.
MR RAFTER: But there is no doubt ‑ ‑ ‑
HAYNE J: And where do we find them dealt with?
MR RAFTER: Well, the way in which the matter was dealt with before the Court of Appeal was dictated no doubt by the fact that the arguments proceeded largely on the footing that the major complaint was the failure to properly advise the applicant about giving – or not calling evidence, having regard to his specific instructions in relation to the matter. The other complaints were ‑ ‑ ‑
HAYNE J: Well, that is shifting attention, again, into an inquiry into counsel’s conduct, which is the one thing that TKWJ establishes. The question is the fairness of trial. Inquiring what counsel knew - did not know may be an important preliminary step, but it does not take you to the end. Now, at trial, counsel for the accused said things in the course of address that, putting it at its highest, were inculpatory of his client. Does that of itself lead to, as I say, the Tuckiar position?
MR RAFTER: Well, the arguments advanced by trial counsel are set out in a summary fashion in the summing up. One sees them commencing at page 22 of the application book to page 27. I will not read all of those out, but your Honours will see there the arguments that were advanced. That is the trial judge’s summary of the defence arguments. As Justice McMurdo explained at page 198 of the application book, paragraph [70]:
But the core argument –
which was put to the jury –
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 the view was formed that despite some of the concessions made in the address, the core argument was valid. On page 189, paragraph [48], Justice McMurdo sets out some aspects of counsel’s address, and his Honour says:
In his own view, counsel may have thought that originality and effectiveness were essential elements. However, a counsel not of that view could well have considered that it was relevant to refer to the absence of those matters, not as determinative of the issue, but as a means of distinguishing this case from perhaps a clearer one. 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 meeting head on the argument that the prosecution made.
KIRBY J: But without benefit of the case that paragraph 36 reveals the applicant wished to present. You see, if you do not understand the nature of the offence, if you have not looked up the law and understand the nature of “knowing concern” then you cannot really have any discussion with your client that addresses the attention of the client to what the elements of the offence are and, therefore, to whether the client can see a statement that they can make which is consistent with innocence of that offence.
MR RAFTER: Well, the Court of Appeal examined the content of paragraph 36 of the applicant’s affidavit and arrived at the conclusion that the failure to put that before the jury did not constitute a miscarriage of justice. There was certain tension between two of the paragraphs, that in (b) and (d), so the Court of Appeal found. So putting forward that explanation was not necessarily going to improve the applicant’s prospects of acquittal.
KIRBY J: Is there a tension in that paragraph [70] of Justice McMurdo’s judgment that I referred to, in which he says that though it is a strong case “it goes too far to say that there was no prospect of an acquittal”. Does that not present a difficulty to the notion that this is a case where conviction was inevitable? If that is the test for the relief where incompetence is shown, as I would be prepared to accept in this case, is that not a problem, that if you say well there was a way he could have won and therefore it was not inevitable that he would be convicted, plus the fact that it is a strong Crown case, does that not make it all the more important that the case for the accused should be properly put?
MR RAFTER: There will be many cases, your Honour, where – to put an alternative – cases for defence will give rise to the possibility of an acquittal, but a tactical decision must be made by the defence as to the giving and calling of evidence. The fact that one strategy is employed and fails does not necessarily mean that - because the alternative strategy might have given rise to some prospect of success that there must be some miscarriage of justice. As I said earlier, a lot flowed from the view that the applicant was unlikely to make an impressive witness. That was a view both he and his wife shared.
KIRBY J: Now, as the test in TKWJ addresses the attention of courts to whether conviction was inevitable, that being relevant to whether there has been a miscarriage, would we in this case therefore have to face the prospect – which is not particularly attractive – of having to go through all of the evidence on the issue of inevitability of conviction?
MR RAFTER: The inevitability ‑ ‑ ‑
KIRBY J: That is the language that they have used in the Court of Appeal. Justice Davies, I think, says a conviction was inevitable.
MR RAFTER: The inevitability conviction test ordinarily arises upon a consideration of the proviso. What this ground of appeal and generally any ground of appeal against ‑ ‑ ‑
CALLINAN J: It is rather like the fresh evidence test, is it not? Significant or fair chance of an acquittal or a reasonable chance of an acquittal, is that not the test?
MR RAFTER: Well, the ground ‑ ‑ ‑
HAYNE J: No, the test is whether there was a miscarriage at trial.
MR RAFTER: Miscarriage of justice.
CALLINAN J: Yes, and when.
MR RAFTER: I was going to go back to your Honour’s comments in Ali v The Queen. That is the language in section 668E(1), and that is the test to be applied, and there are a number of authorities in this Court in ‑ ‑ ‑
KIRBY J: I think in fairness, Justice Davies applies the correct test, namely whether a miscarriage of justice has occurred, and Justice White, with whom Justice Davies agreed, says that the question was whether the conduct of counsel resulted in a loss of a chance of acquittal fairly open. This is all very similar to the language of the proviso, and the cases on the proviso.
CALLINAN J: And cases on fresh evidence also. Justice Gaudron said that in TKWJ and Justice Heydon and I said it in Ali.
MR RAFTER: The main judgment of Justice McMurdo focused on the various judgments of this Court in TKWJ. One sees that at the foot of page 190, and there are extracts from the various judgments set out on the following page, page 191. At the top of 192 his Honour noted:
TKWJ has been applied in two cases, the first being R v N [2003] QCA 505 and the subsequent case being R v N -
In my submission, a fair reading of what his Honour sets out there shows that his Honour applied the appropriate test as to miscarriage of justice consistently with TKWJ and then subsequently this Court’s decision in R v Ali.
KIRBY J: Yes, well I think your time is up, Mr Rafter. What do you say about that issue, Mr Byrne, that in order to consider this case we would then have to plough through all of the evidence on the inevitability of the conviction or the unfairness of the conviction that would ‑ ‑ ‑
MR BYRNE: In our submission, no, because, as your Honour Justice Kirby has raised there is the recognition, even in paragraph [70] of the principal judgment of the Court of Appeal, that a conviction was not inevitable, even on the evidence at trial. It could not logically, therefore, be said that given the alternative and additional matters that there was any real argument that this was an inevitable conviction case. The question ultimately for this Court is whether there was a fair trial.
KIRBY J: Is there anything else you wish to say?
MR BYRNE: No.
HAYNE J: Just before you sit down. If leave were granted would you seek to challenge anything that is said in TKWJ?
MR BYRNE: I hesitate on that point only for the sense that we would seek to more flesh out the test by Justice McHugh.
HAYNE J: Yes.
KIRBY J: Yes, there will be a grant of special leave in this matter, and I assume that the matter would take a day or less, is that correct?
MR BYRNE: Yes, that is so.
KIRBY J: Yes, very well.
AT 10.12 AM THE MATTER WAS CONCLUDED