Palmieri v The Quen

[1997] HCATrans 387

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M16 of 1997

B e t w e e n -

PETER PALMIERI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 1997, AT 3.01 PM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:   May it please the Court, I appear with my learned friend, MR D.M. SALEK, for the applicant in this application.  (instructed by the applicant)

MR J.D. McARDLE:   If the Court pleases, I appear with my learned friend, MR T.P. BURKE, for the respondent in the application.  (instructed by P. Wood, Solicitor for Public Prosecutions)

BRENNAN CJ:   Yes, Mr Tehan.

MR TEHAN:   Your Honours, there has been a substantial miscarriage of justice in this case.  The miscarriage arises because of an erroneous application of principles concerning fact finding by an appellate court on an appeal against sentence and therein lies the special leave point of this application.  What is the approach of an appellate court on fact finding where there has been an unfair trial?  The majority in the Court of Appeal thought that they could reach the same conclusions as the sentencing judge when the evidentiary basis for those conclusions was impugned and in this case the evidence - and I speak of the evidence of the two expert witnesses - was impugned in a fundamental way.

It had not received a fair hearing by the sentencing judge.  Indeed, the judge had prejudged the foundation for the evidence of the experts.  He had conducted most of the examination of the two witnesses and he was dismissive of their opinions.  We submit that the finding of the court in this case should have been that the applicant did not receive a fair hearing of the evidence which formed the central point of his plea in providing an explanation for his bizarre and totally out‑of‑character offending.  Once that point was reached as it was by the dissenting judge, then appellate intervention was warranted.

BRENNAN CJ:   Now, all members of the court held that there had been an erroneous exercise of the sentencing discretion.

MR TEHAN:   With the dissenting judge going one step further and finding that there had been an unfair trial had.

BRENNAN CJ:   The next question is, if there has been an error in the exercise of a sentencing discretion, what does the Court of Criminal Appeal do?  Now, what do you say the Court of Criminal Appeal should do?

MR TEHAN:   We say that the Court of Criminal Appeal should act upon two principles.  Firstly, it should not act upon conclusions drawn from evidence which has been elicited upon an unfair hearing.

BRENNAN CJ:   What does it do with regard to that evidence?

MR TEHAN:   What it does do is it finds the primary facts before resentencing and it goes about that task by not having regard to the evidence which was tainted by the unfair hearing, but by having regard to the evidence which is before it and in this case the evidence which was before the court was contained in the two written reports of the two experts and unless it be shown that the conclusions reached in those reports were wrong, then those conclusions should be accepted.

BRENNAN CJ:   But the conclusion that was reached by Justice Nathan does not taint the evidence that was given before him.  The evidence is there to be evaluated.  Does the Court of Criminal Appeal have to evaluate it?

MR TEHAN:   The Court of Criminal Appeal did attempt to evaluate it and in doing so what it did was to say that the conclusions reached by the two witnesses could not be relied upon because the applicant had pleaded guilty.

McHUGH J:   But that was absolutely right, was it not, to a large extent because by his plea of guilty he admitted at the time of the offence he knew what he was doing and knew that it was wrong and much of their evidence was, in effect, evidence which would have gone to an insanity plea.

MR TEHAN:   With respect, your Honour, Mr Joblin found that the applicant was probably insane.  Dr Walton found that he was probably suffering under a gross psychosis and acting as an automaton.

McHUGH J:   Well, that would have required a plea of not guilty.

MR TEHAN:   Well, the plea of guilty in no way answered what were the underlying reasons for the applicant committing this bizarre uncharacteristic behaviour and it was ‑ ‑ ‑

McHUGH J:   I know, but the learned judges of the Court of Appeal seem to have themselves analysed the evidence and they gave their reasons through from somewhere around about 124 through to the end and that is it.  Now, they may have been wrong in their conclusion, but where is the special leave point?

MR TEHAN:   The special leave point lies in the question of what is the correct approach to resentencing a person after he has had an unfair trial and, in our submission ‑ ‑ ‑

BRENNAN CJ:   In this case the sentence passed by the trial judge was put to one side and the majority of the Court of Criminal Appeal set about imposing the sentence which they thought ought to be imposed.

McHUGH J:   And so did the dissenting judge.

BRENNAN CJ:   So did the dissenting judge.

MR TEHAN:   And they set about imposing that sentence without, in our submission, properly dealing with what was ground 2.b of the grounds of appeal, that ground relating to a substantial miscarriage of justice because the judge had not made findings in relation to the psychological and psychiatric evidence.  The approach taken by the majority was to find that the sentencing discretion had miscarried and to uphold ground 2.a.  The majority, however, never properly evaluated ground 2.b of the grounds of appeal and the majority did not ‑ ‑ ‑

McHUGH J:   The ice gets very thin under counsel when he or she says the court did not properly evaluate something.  It is smacks of a non‑special leave point.

MR TEHAN:   With respect, your Honour, the heart of this application concerns the notion of what an appellate court should do once it has been found that an unfair trial has been had and what we say is that one thing is clear, that the appellate court should not act upon conclusions which have been reached from evidence which has been impugned.

McHUGH J:   It does not appear to me that this court did that.  They looked at the matter afresh themselves.  They reached their own conclusion.  They may be wrong, but if they are, where is the special leave point?

MR TEHAN:   The special leave point lies in the question:  what are the relevant principles to be applied by an intermediate court to an appeal against sentence where the primary hearing has been unfair and there are differences ‑ the differences are epitomised by this very case and it is at the heart of what we say should have been the decision in this case to find that an unfair trial had been had ‑ ‑ ‑

BRENNAN CJ:   But forget all about the unfair trial.  It went by the board.  We are concerned with what happened in the Court of Criminal Appeal.  Now, the Court of Criminal Appeal had the evidence before them that had been brought before the trial judge.  Now, all members of the Court of Criminal Appeal evaluated that evidence.  They had no other choice.

MR TEHAN:   And the majority rejected that evidence.

BRENNAN CJ:   So?

MR TEHAN:   Relying upon two matters.  Firstly, the same conclusions that the trial judge had made.

BRENNAN CJ:   Show us that.

MR TEHAN:   And, secondly, the applicant’s plea of guilty.  Now, as to the first matter, the majority said at page 124 of the application book:

In our opinion, on the whole of the material, and notwithstanding the bizarre features of the offences, the judge was entitled to reach his conclusion that the applicant had been guilty of “lustful activity, ... over hours, for personal sexual gratification” and his conclusion, expressed, not in the reasons for sentence, but near the end of the plea, that “this was sexual” and that the causes were “lust and ... lack of inhibition from marijuana ingestion”.

We would reach the same conclusions.

BRENNAN CJ:   They reached the conclusions for themselves.  That is not adopting the trial judge’s view.  That is expressing their own.

MR TEHAN:   Well, if that is correct, your Honour, then, in our submission, those conclusions have been reached upon evidence which has been elicited in an unfair process ‑ ‑ ‑

BRENNAN CJ:   No.  Elicited in a quite fair process but, according to your argument, wrongly evaluated by the trial judge.

MR TEHAN:   We would say that the conclusions could not be reached in the way the majority have because the evidence which formed the foundation for those conclusions being made was given in an unfair trial process, but in addition to that, what is apparent from the majority opinion is that the majority relied substantially upon the applicant’s plea of guilty in forming their opinion.  At line 20 on page 124 of the application book they stated:

Once that is accepted, many if not all of the difficulties which Mr Grace suggest arise from the evidence of the two expert witnesses fall away -

Now, the fact of the matter is that what does not fall away were the two primary matters to which this evidence was directed.  Firstly, what were the underlying reasons for the applicant committing this uncharacteristic behaviour and, secondly, was he a person who was likely to re‑offend?  Neither of those questions could be answered by the plea of guilty.  The plea of guilty was not profited by the primary judge as being the basis for rejecting those two contentions and yet here we have the Court of Appeal saying to this applicant, “Well, because you pleaded guilty, the matters your counsel has raised before us touching upon these two matters which form the basis of ground 2.b are really not of much weight at all”.  That is simply an erroneous exercise of principle by an appellate court.

We go further, of course, and say that the judgment of the dissenting justice in this case was correct, that his Honour Mr Justice Charles correctly found that there had been an unfair hearing and, accordingly, properly found that reliance could not be based upon the conclusions drawn by the primary judge.  He rightly, in our submission, found that the plea of guilty was to be seen as indicative of remorse rather than as a basis for rejecting the expert evidence of the two witnesses and he correctly concluded that the written reports of the witnesses should be accepted as their evidence and acted upon unless it could be said that the conclusions contained within those reports were demonstrably wrong and on no view of the evidence could that view be taken.

It is in that way that we say the majority in the Court of Appeal have misinterpreted, so to speak, the appellate function by using the applicant’s plea of guilty as a makeweight against him, as an answer to saying that, “We will not rely upon the conclusions of these expert witnesses.”  Now, that approach, we submit, is wrong.  Once it is accepted that the applicant did not receive a fair trial of his explanation for offending. as given through the two experts. then it was, in our submission, incumbent upon the Court of Appeal to intervene by resentencing the applicant.  We submit that in the circumstances of this case the court could not conclude that no different sentence be imposed, but rather would be irresistibly compelled to the conclusion which Justice Charles reached, that is that a somewhat reduced sentence be imposed in this case.

In our submission then, in summary, the approach of the appellate court is erroneous for three reasons.  Firstly, the correct approach for an appellate court in assessing whether the sentencing discretion has miscarried should be to evaluate and assess the reasons by which the claim of miscarriage is made.  It is not sufficient, in our submission, when a claim as to erroneous fact finding is made, to only deal with part of a ground of appeal making such a claim.  Yet that is what occurred in this case. 

Secondly, we would say that little weight could in this case be attached to the primary judge’s conclusions for the applicant’s offending

because the applicant had not received a fair trial of the evidence led upon this issue.  On this score we submit that Justice Charles correctly found that the judge had at the outset of the proceedings made it clear that:

the central point of the expert evidence about to be given by Dr Walton and Mr Joblin would not receive the objective and disinterested consideration which the issue demanded and which his Honour was, in my view, obliged to give to that evidence. 

If, in fact, the evidence from which the conclusions were drawn had not been fairly considered by the primary judge then, in our submission, the Court of Appeal could not come to the same conclusions.  At least, we would submit, these conclusions should not be acted upon unless they were inescapable.  Thus we submit that Mr Justice Charles was correct in identifying the appellate function on sentence as not leaving out of the court’s consideration the written reports of Dr Walton and Mr Joblin. 

Thirdly, we say that the fact that the appellant pleaded guilty in no way undermined the explanations for his conduct proffered by the two experts.  By his plea the applicant had accepted legal responsibility for the offences, but that did not exclude a proper and thorough examination of the expert evidence concerning his state of mind.  The primary judge had certainly not used the guilty plea in this way and we submit it was wrong for the majority in the Court of Appeal to use it as a basis for rejecting the opinions of the two experts.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Tehan.  We need not trouble you, Mr McArdle.

This application involves no more than an assessment by the Court of Appeal of the evidence relating to the sentences which ought to have been imposed on the applicant.  No error appears in the approach taken by the Court of Appeal but only divergent assessments of the relevant material.  That is no basis for a grant of special leave.  Accordingly, special leave is refused.

AT 3.21 PM THE MATTER WAS CONCLUDED