O'Brien v The Queen

[2009] HCATrans 247

[2009] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B14 of 2009

B e t w e e n -

JAMES THOMAS O’BRIEN

Applicant

and

THE QUEEN

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 2 OCTOBER 2009, AT 12.09 PM

Copyright in the High Court of Australia

MS C.A. CUTHBERT:   If it please your Honours, I appear with MR J.M. NOUD for the applicant.  (instructed by Callaghan Lawyers)

MR M.J. COPLEY, SC:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Ms Cuthbert.

MS CUTHBERT:   Thank you, your Honour.  Your Honour, this application for special leave raises the issue of what constitutes an adequacy in a Tripodi direction after a trial.  It is, in my submission, an issue of general import.  It is also clearly an issue of specific importance to the applicant given the particular circumstances of this case which constituted a nine count indictment, count 1, being a count of trafficking over a period of some six years from 1997 to 2003.

On the Crown case, your Honours, the evidence supporting trafficking clearly fell into two time periods and two categories.  The latter period commenced after 19 November 2002 and largely was constituted by a number of telephone intercepts of which there are transcripts and, as such, in my submission, and we would concede, the evidence is quite compelling.  In the earlier part of the trafficking period, which was 1997 to around November 2002, the Crown relied heavily on the evidence of two indemnified witnesses, a mother and son, Debra Dangerfield and Corey Dangerfield.  There were serious issues of credit attaching to those witnesses and they had been involved in drug‑related activities themselves. 

Given that the Tripodi calls that were admitted without objection by the defence were more pertinent to count 9 on the indictment, which was the final count of production of methylamphetamine, and the latter part of the trafficking period, it is my submission that it was incumbent upon the learned trial judge to give a full and clear Tripodi direction.

HAYNE J:   Well, now, in that regard what are we to do with what happens as recorded at page 84 of the application book where the subject is raised, trial counsel expresses views about what is forensically desirable and then accepts that the proposed form of direction is “very acceptable”?

MS CUTHBERT:   It is a good question, your Honour.

HAYNE J:   Well, it is not a comfortable question, Ms Cuthbert, whether it is good or not, what are we going to do with it?  It is a rather large hurdle in your way, is it not?

MS CUTHBERT:   It is, but if I may respond in this way, and I will take your Honours to the comments by his Honour Justice McHugh in Fingleton about the obligations of a trial judge regardless of forensic decisions made by trial counsel in the course of the trial.  It appears in Fingleton v The Queen (2005) 227 CLR 166 at 199.

HAYNE J:   I rather suspect it is page 198 that you are going to direct us to, is it, paragraphs 81, 82 and 83?

MS CUTHBERT:   That is correct, your Honour.  Thank you, your Honour.  Page 198, and also probably the summing‑up of it on 199:

The right of every accused to a fair trial according to law cannot automatically depend on the forensic choices of the counsel who represents the accused.

That probably succinctly puts the principle.  The other significant matter, given the facts of this trial, is that there were two sets of calls.  The earlier set of calls, which were not the subject of any intercept so their content is unknown, occurred in the earlier part of the trafficking period.  It is our submission, and it was the applicant’s submission in the Queensland Court of Appeal, that the fact that there were two sets of calls increased the need for a clear and detailed Tripodi direction.  Your Honours will note that her Honour Justice Holmes in the Court of Appeal decision at page 109 of the application book, paragraph [31], indicates that:

It is entirely improbable that the jury would have taken the learned judge’s reference to “evidence in the telephone calls of conversations between people other than Mr O’Brien” as referring to the entries on the schedule for calls between Corey Dangerfield and his uncle.

Your Honours, we would respectfully disagree with her Honour’s statement there and say it is entirely probable, given the nature of the case, the two periods within the one trafficking count and the two sets of phone calls, that some confusion could arise in jury.  In my submission, the potential for confusion appears in the previous paragraph of her Honour’s judgment at paragraph [30] and I will commence one sentence in where her Honour says:

I do not think there is any risk that the jury would have supposed, when her Honour referred again to “common purpose” in the direction on the use to be made of telephone conversations in which the appellant was not a participant, that she was speaking of any different common purpose.  In fact, the calls between Philp, Parkes and Kalpaxis in the course of arranging the supply of pseudoephedrine in Sydney on 14 September could also have been used by the jury as evidence of the last of the production counts.

Your Honours, the propensity for confusion is evident there in that Philp, who was one of Mr O’Brien’s co‑accused, was not involved in any phone calls until after 14 September and, in fact, until after 19 September when he was released on bail after the interception of the car at Tugun.  Similarly, in her Honour Justice Atkinson’s summing‑up a simple but, in my submission, quite significant error or slip of the tongue occurs when her Honour refers to the earlier set of phone calls which were represented by a document called document C which was just really a schedule, your Honours.  This appears at page 39 of the application book at the top of the page where her Honour says:

Now, the admissions document which I just referred to you in Exhibit C, document C attached to that sets out all of the phone calls made between Glenn Dakin and James O’Brien, whether on the mobile or the landline, in the relevant dates.  Of course, there was no covert surveillance of those, so you don’t have the conversations before you because there was no capacity to listen to those phone calls, but you do have the fact of those phone calls between the parties involved in this, James O’Brien and Glenn Dakin.

HAYNE J:   Now, those matters were taken up by way of exception at pages 78 and 79, were they not?  There was an exception to the charge concerning what had been said about document C; see 78 and 79 of the application book, is that right?

MS CUTHBERT:   Yes, that is correct, your Honour.  What my submission is attempting to illustrate is the ease with which there can be a slide into inaccuracies, because the phone calls were merely records of calls between registered numbers, not who made those calls.  The point is that without a clear direction along the lines suggested by Justice Chesterman there was capacity for a jury to fall into confusion.  Further, her Honour’s direction on Tripodi, in my submission, did not clearly indicate that the Tripodi evidence was relevant to count 9 and count 1, therefore, leaving open to the jury that they could use the Tripodi calls to convict O’Brien on count 9 but possibly not on count 1, that they could be put to that use.

Given the weakness or the credit issues overall of the Dangerfields, that puts the strength of the Crown case in another light.  But if a jury was led into some sort of thinking the Tripodi calls could apply across the whole of the trafficking period and not be isolated purely to count 9, the last of the production, it is at that point that the inadequacy of the summing‑up strays into, in my submission, a miscarriage of justice for my client and looked at in that light, it then raises the issue of whether this was an appropriate case on which to apply the proviso in section 668E of the Criminal Code (Qld).

So what at first blush, your Honours, in my submission, looks like a strong Crown case, needed to be carefully dealt with principally by a detailed Tripodi direction and that the failure to do that may have resulted in a miscarriage of justice for my client.  Just to reiterate his Honour Justice Chesterman in this instance, the bare minimum adequate Tripodi

direction would have consisted of a clear identification of the evidence and also a clear identification of the evidence not included in the Tripodi matters, clearly identifying the counts to which the Tripodi course related and distinguishing those counts from other counts and then clearly identifying the various participants in the Tripodi course and distinguishing those participants from persons recorded in the earlier set of phone calls as at least the registered users of those telephone numbers. 

My submission is that that the summing‑up of the directions of her Honour Justice Atkinson did not come close to that level of detail.  Your Honours, those are my submissions.

HAYNE J:   Thank you, Ms Cuthbert.  We need not trouble you, Mr Copley.

Having regard to the course of events at trial and, in particular, the forensic choices reasonably made by trial counsel, we are not persuaded that it is arguable that not giving the jury instructions of the kind now said to have been necessary constituted a wrong decision of a question of law at trial or, on any other basis, constituted a miscarriage of justice. 

The orders made by the Court of Appeal in this matter are not attended by doubt.  It is, therefore, not necessary to examine the differences in reasoning expressed by the members of the Court of Appeal.  Special leave to appeal is refused.

AT 12.24 PM THE MATTER WAS CONCLUDED