O'Connor v The Queen

[1996] HCATrans 403

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 1995

B e t w e e n -

PATRICK  JOHN O’CONNOR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 1996, AT 11.17 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear for the applicant.  (instructed by Murphy’s Lawyers Inc)

MR G.S. HOSKING:   If the Court pleases, I appear for the respondent with my learned friend, MR M.C. MARIEN.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DAWSON J:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, this application raises a question of whether and in what circumstances it is proper for a person to be subjected to a retrial after a judicial inquiry has found a reasonable doubt in respect of that person’s guilt.  Your Honours, I have, firstly, to seek the leave of the Court for an extension of time within which to seek special leave.

DAWSON J:   What is the time involved, Mr Byrne?

MR BYRNE:   The time involved, your Honours, is approximately six months.

KIRBY J:   Your explanation was you did not expect the bill would be filed and you, therefore, were waiting for that, but when the bill was found, you proceeded.  I would not think the Crown would oppose the extension of time.  Perhaps the Crown is hard of heart in this case.

MR HOSKING:   Not in this case, your Honour.

DAWSON J:   You are not objecting?

MR HOSKING:   I take no point about time, your Honour.

DAWSON J:   Yes, very well, time is extended.

MR BYRNE:   Thank you, your Honour.  Your Honours, the circumstances in which the matter comes before the Court are somewhat unusual.  There was in this case a conviction back in 1990 of the applicant after he had been taken in custody in 1989.  During the period he was serving the sentence imposed in consequence of his conviction, a question as to the correctness of those convictions arose.

DAWSON J:   We know the facts, Mr Byrne.  We have read the papers.

MR BYRNE:   May it please your Honours.

KIRBY J:   Is this the famous Mr Astill who was involved in ‑ ‑ ‑

MR BYRNE:   It is the same, one and the same.

KIRBY J:   I think I sat on one of his appeals.

MR BYRNE:   Yes, your Honour.  Your Honours, the short point raised by the application is whether or not, in all of the circumstances, the Court of Criminal Appeal should have ordered that there be a retrial of the applicant.  The submission put on his behalf is that there having been a reasonable doubt found in relation to his guilt in the judicial inquiry, then that should have resulted in the quashing of his conviction unless it was found by the Court of Criminal Appeal that the finding of the judicial inquiry was, to some extent, or in some way, in error.

TOOHEY J:   When you say “should have”, Mr Byrne, do you mean should have in all the circumstances, or are you going further in suggesting that the court was required by the terms of the legislation not to order a retrial?

MR BYRNE:   I say in this case, your Honour, that the court should have, in all the circumstances of this case, not ordered a retrial.

KIRBY J:   This is the trouble that I have with your application, that there are very powerful discretionary reasons for the course you are proposing, but the Court of Criminal Appeal has a discretion.  It exercised its discretion.  We have to find a serious error that would warrant the grant of special leave, and there was a factor in the case that supported their exercise of discretion, namely, that Mr Astill was said to be an impression or disfunctional person and that that is a matter upon which a jury should pass.
Is that not a factor that was open to the Court of Criminal Appeal to consider in determining that, in essence, the wrongfulness of the conviction of your client should ultimately be passed upon by a jury?

MR BYRNE:   In my submission not, your Honour.  The evidence that was available against the applicant was comprehensively reviewed by the judicial inquiry and as, indeed, the Court of Criminal Appeal, with respect, properly recognised, the judicial inquiry considered a large body of evidence that would not have been available for a jury to consider and would not, in the normal course, have been available for the Court of Criminal Appeal to consider in determining whether, for example, the verdict was safe and satisfactory.

KIRBY J:   Does that lead to a submission that when one looks at the Criminal Appeal Act and the provisions of the Crimes Act permitting the inquiry, that it is uncomfortable to put them both together with the result that the inquiry may find the miscarriage of justice but, on a retrial, a jury, limited in the evidence that it can receive, may not.

MR BYRNE:   That is a possibility and it is a possibility that may result because the jury would not have been entitled to hear evidence that was in fact put before the inquiry and evidence upon which the inquiry’s conclusion that there existed a reasonable doubt as to guilt may have been based.

KIRBY J:   Did not Judge Ducker find that though there was some defects in the identification evidence that, nonetheless, there were some pretty strong other evidence that linked your client to the offence?

MR BYRNE:   No, he did not.  He found that the identification evidence was in fact the only evidence linking him to the offence and he said that that identification evidence, whilst not compelling, he described it as being less than compelling and he said that there was in relation to that evidence a possibility that each of the witnesses were mistaken, but that was the only evidence of any significance that was adduced against the applicant as he now is.

The material that emerged in the inquiry was relevant to the identification evidence in the sense that there was a much more exhaustive examination of that evidence in the 19 days that the inquiry took as compared with the three days which the original trial took but, more importantly in the inquiry, there was an additional witness who was not called in the trial who was an eyewitness to the robbery.  She was called in the inquiry and her evidence was, rather than perhaps not supporting the Crown case, was evidence which could be said to directly contradict the Cown case in that she was confronted by the applicant ‑ ‑ ‑

KIRBY J:   Had she given evidence at the first trial?

MR BYRNE:   No, she had not.  She was not a witness in the first trial, but she came ‑ ‑ ‑

KIRBY J:   So the position was that the only evidence linking your client to the robbery was the evidence of the two school children which the judge found was flawed and unreliable.

MR BYRNE:   Yes.

KIRBY J:   And the evidence of this additional witness who was not present at the first trial and you say was against the Crown’s case.

MR BYRNE:   The additional witness gave evidence in the inquiry and she gave evidence that the applicant could not have been the person who committed the offence.

KIRBY J:   She would, presumably, be available for any trial of your client.

MR BYRNE:   She would be, yes.  One would hope she would be.

KIRBY J:   The only arguably important point would be, how does one relate the Crimes Act provision for inquiry to the exercise by the Court of Criminal Appeal of its discretion to order a retrial or to quash the convictions?  Is that not a matter which will just vary in each case?

MR BYRNE:   Yes, that is fair to say that it will vary.

KIRBY J:   And if it is, how can we be of any assistance here?  It is just something the Court of Criminal Appeal has to work out on the facts of each case, is it not?

MR BYRNE:   It ultimately may come down to a matter, your Honours, where the Court is of the view that the specific circumstances of this case justify the intervention of this Court or the granting of special leave by this Court.

KIRBY J:   The strong merits argument you have is that you served five of the six years of the sentence.

MR BYRNE:   Yes, your Honour.

DAWSON J:   But that, of course, would be taken into account if there are any further sentences.

MR BYRNE:   Yes, it would be, of course.

DAWSON J:   I am mystified myself as to why - no doubt they have reasons - the prosecuting authority sought to prosecute in a new trial.

KIRBY J:   I share Justice Dawson’s mystification for the same reasons.  I say no more.

MR BYRNE:   Yes, your Honour.  That is perhaps a matter for the discretion of the prosecutor ‑ ‑ ‑

DAWSON J:   Undoubtedly it is, yes.

MR BYRNE:    ‑ ‑ ‑ which we do not seek to raise any point on on this application, but it is a situation we would put to your Honours that the ‑ ‑ ‑

KIRBY J:   How long did the first trial last?

MR BYRNE:   Three days.  It is a situation, your Honours, where the applicant has under the provisions of Part 13A of the Crimes Act, in effect, qualified to have a judicial inquiry.  In order to obtain a judicial inquiry, he needs to go before a Supreme Court judge to satisfy that judge that there is ‑ ‑ ‑

KIRBY J:   Yes, there are gateways.

MR BYRNE:   Yes.  He has been through that filter, as it were, and then having been through what must be legitimately seen as the ordeal of the inquiry and a further long inquiry into his guilt, he has effectively had success in that inquiry in the sense that it has resulted in a finding in his favour, a finding that he was not guilty of the offences of which he had been convicted.

KIRBY J:   Is there anything hovering in the background?   I hope I can put this out of my mind.  Your client would be seeking some compensation for wrongful conviction and that the Crown will be resisting that?  Could that be a possible explanation for the retrial?

MR BYRNE:   That is a matter, with respect, your Honour, for speculation, but on his behalf I could not rule that out as a future possibility.

KIRBY J:   It is just the practical streak in my nature makes me look for these possibilities.

MR BYRNE:   Your Honour, it is a situation where having, as I put it, obtained some success in the sense of a favourable result in the judicial inquiry, that should, unless there is some reason to question the result of the judicial inquiry, or the conclusion which it has reached, result in the matter being terminated in his favour.  The order for a retrial, in all the circumstances, cannot, in my submission, be justified because there has not been a finding that the judicial inquiry’s conclusion was wrong.

KIRBY J:   This is a very powerful, indeed, if I can say so, compelling argument for the Court of Criminal Appeal, not for this place.

MR BYRNE:   May it please your Honours.

DAWSON J:   We need not trouble you, Mr Hosking.

It is not disputed that the Court of Criminal Appeal had a discretion to order a new trial.  Whilst this Court may not have exercised that discretion in the same way as the Court of Criminal Appeal in this case, there was no error in the exercise of its discretion by that Court which would found a grant of special leave to appeal.  Special leave to appeal is accordingly refused.

AT 11.30 AM THE MATTER WAS CONCLUDED