Papalia v The Queen

[1997] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S157 of 1996

B e t w e e n -

DANIEL JOSEPH PAPALIA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 APRIL 1997, AT 11.57 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR S.J. ODGERS.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR G.S. HOSKING, SC:   May it please your Honours, 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))

TOOHEY J:   Yes, Mr Game.

MR GAME:   If the Court pleases.  In this case we say the Court of Criminal Appeal fell into three errors and that those three errors, individually and taken in conjunction, warrant a grant of special leave.  I will take them in turn.

If the Court could go directly to page 19 of the application book, the applicant pleaded guilty to the offence of attempted murder.  Duress is not a defence to attempted murder, at least for a principal in the first degree.  However, he raised duress on sentence.  Evidence in relation to duress came before the Court both through his records of interview, his statement to the police - a police officer gave evidence - and through other material relating to his custodial circumstances which showed that the person A had, in fact, put out a contract on his life which led to him being put in strict ‑ ‑ ‑

McHUGH J:   You say duress is raised on sentence but is it clear that duress as duress was raised on sentence or was just this question of a threat there as some sort of background?

MR GAME:   Firstly, we would submit that it is quite important that one does not restrict duress to duress in a definitional sense.  That is to say one is not restricted on sentence to duress definitionally, and that is the error that is disclosed by the submissions put on by the respondent in these proceedings.  But he raised duress in the sense that he said to the court that he committed this act because the person A, backed up by the person K, had made a threat, which was a continuing threat, that his family would be killed if he did not go through with the shooting.  There was a good deal of evidence that supported that.  In fact, there was no contest by the Crown in relation to that assertion.  In fact the Crown were calling Papalia in the trial against A and K to prove just such very things.  So we would submit that ultimately it is neither here nor there whether or not he would have or could have succeeded definitionally on duress.  But, yes, your Honour, he said it was a continuing threat and he said he thought that he had no choice.  He was told that if he went to the police his family would be killed anyway.  So that he thought he had no alternative.  So the answer is yes, but we submit that it is not necessary to go that far.

TOOHEY J:   I must say that seems to be putting the argument or the evidence at its very highest, Mr Game, is it not?

MR GAME:   The respondent put on some material.  We have other material which showed the matter, we would submit, in a different light, but the matter has never been approached from the point of view, until these submissions in this case, that it was not open to make such a finding.  The point is that the judge accepted that the threat was made.

McHUGH J:   I am not sure that he accepted it, did he?  He acted on the basis ‑ ‑ ‑

MR GAME:   He made a finding that it had been made.  That is an erroneous quotation from his remarks on sentence on page 19.  He said, “accepting it to have been made”.  That appears at page 6.  He says:

because when the threat was made, accepting it to have been made, and this was on the second occasion that the prisoner saw A at K’s home -

and if you go back to ‑ ‑ ‑

TOOHEY J:   What line is that, Mr Game?

MR GAME:   That is lines 45 to 50, your Honour.  He says “about a week or ten days” but, in fact, the previous visit had been about a week or ten days, so it must have been closer than that.   That appears on page 3, and there is other evidence that K continued to reinforce the making of the threats and other people told him that “He means what he says” and the material - and the applicant himself was an 18-year old man and the man A is a dangerous criminal in his mid-40s.

TOOHEY J:   But there are some really curious aspects to the evidence.  I appreciate that there may be answers to some of these things but the offer was made to another man initially and he declined.  The applicant was aware of this.  The first man declined to play any part, and just seems to have been the end of it.  There was no suggestion that that man was subjected to any threat by reason of his unwillingness to participate.

MR GAME:   The first man to whom the request was made carried through and backed up A in relation to the making of the threat against the applicant.  That is to say the person K became the mouthpiece for the making of the threat.  But, your Honour, there is no suggestion that any of this was acted upon, as a basis for rejecting the point.  The point is that the only reason that was given for rejecting this by the sentencing judge was that the name was not known at the time that the threat was first made.  Now, that is an irrelevant consideration. 

McHUGH J:   It is if you look at it literally, but what the judge may well have had in mind was that the threat could not have been a serious threat at that stage because he was not even told who the person was.  The judge does not express himself very well, but it may be what he had in mind.

MR GAME:   Your Honour, if he had it in mind, he did not say it.  As I said, the threat was a threat that was repeated by the person K throughout the period.  He was told, “He means what he says.” by K  And there was other evidence that “Sonny has to do the killing”, which is the applicant, said by K to K’s wife in the presence of the applicant.  And he says, the only reason is the identity was not disclosed - the fact that the identity was not disclosed is a matter that simply could not be relevant to that consideration.  And the Crown on the appeal in the Court of Criminal Appeal did not seek to support it and it cannot be supported. 

Once the one reason goes for rejecting causation, then the role of the Court of Criminal Appeal is to assess the question for itself.  This is a misapplication of the principles of House v The King, to simply say it was open to make the finding of no causation, without considering the question for itself.  This, in our submission, is a classic instance of a failure to appreciate what the role of the appeal court is in reviewing a discretionary judgment involving an erroneous finding of fact or a failure to find a fact.  It is a persistent error disclosed in other judgments of the court which actually assert that this is the correct way to approach disclosed errors that have, on occasion, been brought to this Court.  A case in point is Kyriakou.  Moreover, the Court of Criminal Appeal not only did not examine the question for itself, it has not given any reasons for rejecting the submission.  Once the error is established, in our submission, the court has to examine the question for itself.  That is a straight application of House v The King.

GAUDRON J:   But it is no error, though, simply to reject it, which clearly the trial judge did ‑ ‑ ‑

MR GAME:   That is true, your Honour.

GAUDRON J:   It would be no error to say, “I just don’t believe him”, if the onus were on the accused to establish it.

MR GAME:   Correct, your Honour.   That is the next - but one cannot start this inquiry unless one knows what the onus is.

GAUDRON J:   That is what I was going to say.  But was there any point raised on sentence as to who bore the onus?  Was anything put to the trial judge on that issue?

MR GAME:   My inquiries lead me to believe that there was no dispute from the Crown in relation to the duress before the sentencing judge, so that the matter was not joined, in the sense of there being any dispute between the parties.  But the judge said - there is a case called Bassett in New South Wales which says that the onus is on the prisoner to establish duress on the balance of probabilities.  So that had that submission been made, it would have fallen on deaf ears because the existing authority says that, no, the prisoner has to establish that on the balance of probabilities because it is said that that is a mitigating circumstance.

If the question becomes one of the Crown having to establish beyond reasonable doubt that duress played no part, then the question is a very different one, having regard to excluding the possibility that ‑ ‑ ‑

GAUDRON J:   It is really only then that there is clear error, is it not?

MR GAME:   I am saying that there is error at each point.

GAUDRON J:   Yes, but let us say the trial judge is there saying, as I would read him, albeit not saying it very precisely, “I just do not believe that this played any part in his decision”, and I would read that when he says, in the further sentence:

I wonder whether he did it because it was dangerous or because he wanted to see if he could do it or because it would give him a reputation if he did it.

That is how, in context, I would read the whole passage as saying, “I just do not believe him.”

MR GAME:   Your Honour, can I just say something about that last sentence.  We would say that that last sentence is not the kind of a question you would be asking yourself if you applied the criminal onus to such a question.  What he is saying is, I do not accept, on the balance of probabilities - he has not satisfied me of duress, that is what he is saying.

GAUDRON J:   Yes.  That is how I read it.

MR GAME:   We say, for an erroneous reason.  But let us just put that to one side for the moment.  We say that the onus of proof in relation to this question is a fundamental question in the criminal law.  It is a question that has not been authoritatively determined and nor is it resolved by an application of what is the current approach to the question by saying, “Are these aggravating circumstances or are they mitigating circumstances?”, because if they relate to the offence itself, they can be bipolar.  One simply puts it in a different way.  One says, the Crown’s case is this attempted murder was committed without duress.  That is to ‑ ‑ ‑

GAUDRON J:   Was any of this put to the sentencing judge?

MR GAME:   This was not put to the sentencing judge but this was put squarely to the Court of Criminal Appeal.  But, your Honour, as I say, had this been put to the sentencing judge he would have been bound, on the basis of the decision in Bassett v The Queen to reject the submission.

GAUDRON J:   But he may also have indicated whether it would have made a difference in this case.  See, at the end of the day, one cannot really determine in relation to the trial judge’s findings whether it would have made a difference to the ultimate finding.

MR GAME:   Our submission to the Court of Criminal Appeal was that under section 12 of the Criminal Appeal Act the matter would have to go back to another judge for the matter to start again, in effect.  But, your Honour, we would put it this way, and this is the way one put it in the Court of Criminal Appeal:  how could one exclude the possibility of duress playing some part in this, given all of the circumstances, including the material that showed that there was an active threat to kill the applicant for $60,000, which caused him to be placed in custody, in strict custody; when the police officer said he accepted what he said - he said that in evidence; when the Crown tendered in its case records of interview asserting this duress.

TOOHEY J:   Well, not initially.  The records of interview did not initially, did they?

MR GAME:   The first record of interview, he declined to answer any questions.  The second record of interview he raised duress.  The third ‑ ‑ ‑

TOOHEY J:   But the problem I think, Mr Game, is that you seek to offer this as a suitable case in which to resolve questions of onus but if, in the end, what has been said by the sentencing judge really amounts to not much more than saying, well, I do not really attach any real importance to what has been said by the applicant, then resolving questions of onus does not really help, does it?

MR GAME:   Yes, your Honour.  With respect, the answer is this:  had the sentencing judge said, I would have rejected this even on beyond reasonable doubt, if that is the correct test on the Crown, then the case goes and we lose, full stop.  But there is no answer at the moment to that question.  We do not know what the judge’s response would have been.  So once the court accepts, as we submit in due course it should accept, that the burden is on the Crown beyond reasonable doubt, there is no state of finding of fact in relation to that issue whether or not that has been displaced beyond reasonable doubt.  The finding on the balance of probabilities which has been made is the finding with which he will serve the rest of his sentence and that, in our submission, cannot stand.  That is why, regardless of the fact that the point was put to the sentencing judge, the case warrants a grant of special leave.  It is not to the point, in our submission, that there is no actual finding.  It would be to the point if there was an adverse finding on that standard and onus.

GAUDRON J:   Yes, but one rather feels that it may have been a deliberate decision not to raise that issue before the trial judge so as to give you a further chance.  You see, by and large, one cannot take it a point later if it is not actually taken at the time it arises.

MR GAME:   Your Honour, the law in New South Wales in relation to this question is regarded as being settled adversely ‑ ‑ ‑

GAUDRON J:   But even so, if one wishes to pursue it on appeal, one would normally at least take the point and reserve it at that stage and indicate that it was to be pursued in another forum so that appropriate findings might be made for its final disposition.

MR GAME:   I do not think the point was appreciated in the lower court.

McHUGH J:   That is one of the problems.  Cases are conducted before sentencing judges in a rough and ready way by practitioners often who regard themselves as practical people who only have a mild interest in the strict application of legal principles, then the case comes up to the Court of Criminal Appeal, it gets in the hands of somebody with an interest in the intellectual content of the law, and it is a different case altogether.  One gets the feeling that that is what this case is all about.

MR GAME:   Your Honour, one has to bear in mind that ‑ ‑ ‑

McHUGH J:   Because one would have thought that counsel at the trial would have said, it is up to the Crown to negative this threat beyond reasonable doubt.  But there is no reflection of that in his Honour’s reasons.  The Court of Criminal Appeal took the view that the trial judge had rejected the accused’s evidence and if that is so and the onus point has not been raised, where is the miscarriage, if it was not raised at the sentence?

MR GAME:   Firstly, there are two pages of cross-examination of the applicant by the Crown.  They do not relate - there is one question which even touches on duress and it is favourable to the applicant.  The Crown did not join issue in relation to this matter so why should the defence counsel even think that such a ‑ ‑ ‑

GAUDRON J:   But nonetheless, it is that old vice, is it not?  Nonetheless it seems that the accused person - the convicted person has given evidence and not been believed and once there is a finding against you on credit as to what was the activating motive ‑ ‑ ‑

MR GAME:   But, your Honour, there is no general finding against his credibility.  He has not been believed on one ‑ ‑ ‑

GAUDRON J:   But it was the activating motive.

MR GAME:    ‑ ‑ ‑for one erroneous reason.  For one reason which is completely illogical.

McHUGH J:   That is not the view the Court of Criminal Appeal took.  You urged that, page 19 line 41 their Honours say:

It was open, in my opinion, for his Honour, on the evidence as I understand it, to make the finding of fact rejecting the claim of the applicant that he did what he did because of the alleged threat.  This finding, in my view, was one open on the material.

MR GAME:   But, your Honour, that is not directed towards my submission ‑ ‑ ‑

McHUGH J:   I know it is not, but that is not the way their Honours - because their Honours thought that your submission was misdirected.  They took the view that the trial judge was really saying, in the passage of which you complain, that he was not accepting the accused’s evidence.

MR GAME:   But, your Honour, that is the very sentence I rely on to show that the Court of Criminal Appeal asked themselves the wrong question.  That is not the question for the court to ask themselves.  The court has to examine what the reasoning was leading to the finding of fact, and then if they are satisfied that that reasoning cannot be sustained, then examine the finding of fact for themselves.

GAUDRON J:   Except if you take the view that the trial judge simply did not believe your client and that what he was saying in that passage was, I do not believe him when he says that was the activating motive.

MR GAME:   In my submission, it is not a satisfactory state of affairs to find the error, assume that he has said that, and assume that the Court of Criminal Appeal examined the question for themselves.

GAUDRON J:   I must say, though, that that is how I would read it.  At first reading, I would read it as a statement, “I just don’t believe him.”, that this was the activating motive.

MR GAME:   Your Honour, once again, that does raise the question of onus and standard.

GAUDRON J:   Yes, of course.

MR GAME:   And, as I said before, it cannot be an answer in this Court, when the matter was raised in the Court of Criminal Appeal, to say it was not raised in the lower court, therefore there is no finding, because if it is correct that the onus is on the Crown beyond reasonable doubt, then the finding cannot stand and there is no adverse finding against him.

Now, the red light has come on, but I have one final point.  Could I make the final point?

TOOHEY J:   You can make it briefly, yes.

MR GAME:   The third error we rely on appears at page 26 and we submit that this third error is to be related back to, in effect, the first.  The Court of Criminal Appeal in that passage is effectively saying that even if error is established, it does not matter because the sentence was not accepted.  Once again, we submit that that is an incorrect application of the principles in House v The King and an incorrect application of section 6(3) of the Criminal Appeal Act.  Once error is established, the court’s discretion is enlivened and subject to the fact that it would dismiss the appeal if it would

impose the same or a higher sentence, then it resentences and House v The King says as much. 

So that, in effect, we submit that the combination of the errors, particularly the first and third in respect of principle, really results in the Court of Criminal Appeal not examining for itself either the errors disclosed or the facts behind them in the sentencing process by the sentencing judge.  The second error, we submit, raises a question of general importance which is not answered by the failure of the counsel to raise the matter in the sentence proceedings.

TOOHEY J:   Thank you, Mr Game.  Yes, Mr Hosking.

MR HOSKING:   Your Honours, in our submission there are three principal questions.  The first question is how the question of the threat was put, firstly, before the learned sentencing judge and, secondly, before the Court of Criminal Appeal.  The second question, as it appears to us, is whether the Court of Criminal Appeal erred in not dealing with the question of who bore the onus of proof.  The third question, we submit, is whether the Court of Criminal Appeal erred in its approach to the factual question of the threat.

Your Honours, my learned friend - I do not say this pejoratively of him ‑ but in effect wants to have it both ways.  He wants to, on the one hand, say to the Court of Criminal Appeal, “Look, your Honours, this was a case of duress”, and when unsuccessful in that he wishes to speak of a case, as he describes it in his submissions, of “duress or something short of duress”.  Our submission, your Honours, is that realistically speaking, in sentencing terms, there is a world of difference between what is in law duress and something short of duress, the critical distinction being that, as your Honours know for duress there must be a coercion, in fact; in the applicant’s mind an absence of choice.  Once the standard falls short of that, then he is exercising a choice of a kind, albeit he would say, even though the sentencing judge rejected it, “Well, I was motivated in part by a threat”.  So, our first point is that there is a world of difference between duress, even on sentencing properly so called, and simply the uttering or the receipt of a threat.

Your Honours, for the reasons we have put in our written submissions, clearly the material before the learned sentencing judge, including the evidence from the applicant himself, was never capable of raising duress in a legal sense because it simply never got to that level.  It is not sufficient, of course, to say I was threatened or, as the applicant did, I did not want to take the risk of injury to my family.  That is not duress in the legal sense.

Now, my learned friend puts to your Honours that there was no argument from the Crown about the question of duress.  There was cross-examination by the Crown but, as we point out in our written submissions, the cross-examination by the Crown was proceeded by more than a page of transcript - recording on a page of transcript - of his Honour questioning the applicant about this very question, about his statements to the police.  So my friend, in our submission, cannot justifiably say that the Crown did not put in issue before the sentencing judge this question of, one, whether there was duress or, secondly, whether he was ever motivated by the threat at all.  Your Honours, that takes me to the next point.

In terms of onus of proof, the Court of Criminal Appeal said on page 20 of the application book - if I may take your Honours to lines 25 to 35 ‑ his Honour Mr Justice Abadee who gave the leading judgment in the Court of Criminal Appeal said:

It was submitted that his Honour’s views were erroneous in terms of confusing the matter of onus.  However, it seems to me that the question of onus does not arise for consideration in this case, at least, in terms of who has the onus, when it is suggested that duress should be taken into account in relation to the matter of sentencing.

In our submission, his Honour was correct in that view because once it is accepted, as his Honour did, that his Honour simply did not believe that the applicant was motivated by the threat - not duress, but even by the threat ‑ then the question of onus in a practical sense just disappears because however one casts the onus, and whether it be on the Crown or on the applicant, even if it be on the Crown beyond reasonable doubt, once his Honour says, “I simply don’t believe you when you say you were motivated by the threat”, it really does not matter. 

We would submit, your Honours, that the law is sufficiently settled, certainly in New South Wales and Victoria, that the onus in this respect is clearly on the applicant.  There is the recent case of Story in front of a five judge bench in the Supreme Court of Victoria to that effect, plus all the New South Wales authorities which, in our submission, contrary to my learned friend’s submission, are uniform in the acceptance of that proposition.

The third matter, we submit, is this, that in terms of the proper approach of the Court of Criminal Appeal our learned friends say that the Court of Criminal Appeal misconceived the proper approach to appellate review of this factual finding and our learned friends rely upon what this Court said in Warren v Coombes. Your Honours, this case, of course, was being determined by the Court of Criminal Appeal under section 5(1) of the Criminal Appeal Act 1912. It was not like what the Court of Appeal does, acting with its powers under section 75A of the Supreme Court Act, powers which include the drawing of inferences and the making of findings of fact.  I have brought up extracts from copies of the two Acts.  Would your Honours be assisted in making the comparison between the two?  I can hand the material up.  With the material I will hand up is a recent judgment of this Court which deals with Warren v Coombes.  It is the recent decision in November of Zuvela v Cosmarnan Concrete Pty Ltd.  My learned friend tells me it has been reported but we could not find it in a reported form.  I will have up four copies, if I may, your Honours.

If I might take your Honours firstly to the Criminal Appeal Act. This appeal, an application for leave by the applicant before the criminal appeal for leave to appeal against his sentence - not an appeal as of right, but an appeal by leave - was under section 5(1) of the Criminal Appeal Act which your Honours will find on page 3 of that extract.

5. (1)  A person convicted on indictment may appeal under this Act to the court:
.....
(c)  with the leave of the court against the sentence passed on the person’s conviction.

Your Honours, that is quite unlike the next provision, if I may take your Honours to it, of section 75A of the Supreme Court Act 1970 which provides relevantly:

(1)  Subject to subsections (2) and (3), this section applies to an appeal to the Court and to an appeal in proceedings in the Court.

Which includes the Court of Appeal.  When your Honours go to subsection (6) of section 75A your Honours will see that, included in the powers of the Supreme Court, including the Court of Appeal, (b) includes:

the drawing of inferences and the making of findings of fact;

Your Honours, the Court of Criminal Appeal, under the Criminal Appeal Act, has no such express power and that is because, in our submission, an application for leave under section 5 of the Criminal Appeal Act is a very different matter conceptually ‑ ‑ ‑

GAUDRON J:   Does that mean any more than that, if error had been established, the matter would  have had to go back to another judge to determine the facts?

MR HOSKING:   Not necessarily, your Honour.  The point that we seek to make is this, that what the Court of Criminal Appeal was doing was not conducting a review of what the sentencing judge did in terms of his fact finding, it was conducting an appeal, hearing an appeal, and that the gateway was the finding of error by the sentencing judge, plus a miscarriage of justice, and there was neither, as the Court of Criminal Appeal found.  So our submission is that when my friend relies upon Warren v Coombes, that that submission is misconceived.

The other matters, your Honours, in that same territory as this, that it was not a case, contrary to my learned friend’s submission, as I apprehend it, that the Court of Criminal Appeal was in as good a position itself to decide the question, the factual question, as the sentencing judge was because, unlike Warren v Coombes, it was not an assessment from primary facts or agreed facts, it depended upon the credibility of the applicant himself as to what his motivation was and, in that respect, only the sentencing judge was in a proper position to determine that question, and he determined it against the applicant and said, “I simply don’t believe you.  I simply don’t believe either that he was acting under duress or that he was motivated by the threat that he received.”

So, your Honours, our submission is this - and I am sorry, your Honours, I did mean to refer your Honours to Zuvela.  May I take your Honours to Zuvela which was a workers compensation claim about an unfortunate man who injured himself with a hammer.

TOOHEY J:   We are familiar with the facts in the case.

MR HOSKING:   The passage upon which I rely ‑ I do not wish to take up too much time about this - is the passage which appears at page 4 of the copy at point 5 on the page, the paragraph beginning:

When a Court of Appeal is reviewing.....should not treat the appeal as a hearing de novo.

Your Honours, it is our submission that, firstly, the sentencing judge’s decision was factually correct.  The Court of Criminal Appeal considered whether the decision was affected by error and answered the question in the negative, that that was the correct approach and, apart from that, we submit there was no miscarriage of justice.  May it please your Honours.

TOOHEY J:   Thank you, Mr Hosking.  Mr Game, do you reply?

MR GAME:   If the Court pleases.  Can I deal with the last matter first, with respect to the approach taken by the Court of Criminal Appeal.  It is our submission that, in fact, this is an instance of what is a persistent erroneous understanding by the Court of Criminal Appeal of its role in relation, not only in sentence matters but in conviction matters in relation to review of erroneous findings of fact.  House v The King itself was an appeal to the original jurisdiction of this Court, an appeal against sentence, and the principles stated in House v The King are principles that apply.  If I could just hand the Court copies of ‑ I know it has been handed to the Court hundreds of times before, but if I could hand the Court copies of House v The King.  Firstly, although the Court agreed that it did not have the same jurisdiction to review - or special or particular power to review sentences given by Courts of Criminal Appeal, at page 505 there is that oft cited passage:

It the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for so doing.

In this case, we submitted that error of reasoning was disclosed. We did not submit that the court itself could assess the question, we submitted that it should be remitted. Then there is a consideration of what the role of the Court of Criminal Appeal is. Section 6(3) and its parallels has been considered in other decisions of this Court in Skinner and Whittaker.  Then, if you go to page 507, about point 7:

In the circumstances we have stated we do not think that we can say that the sentence, although severe, was unreasonable or clearly unjust, and there is no other ground for saying that it arose from error of fact or of law, or failure to take into account any material consideration, or from giving undue weight to any circumstance or matter.

That is the correct approach for the Court to take.  Now, the error, we submit, is a persistent one.  This Court, in Kyriakou, confirmed that the approach taken by the Court of Criminal Appeal in Kyriakou was erroneous.  If I could hand the Court the special leave ruling and a case of O’Donoghue likewise, discloses the same error.  So, in effect, what has happened in this case is the court has thought that it was applying House v The King principles but has not done so.  I hand those three passages to the Court.  Firstly, if I could just show you the passage in Kyriakou.  I have just taken out one page in that.  In Kyriakou, the last paragraph of the special leave refusal:

Although the judgment of the Court of Criminal Appeal does not accurately express the role of an appellate court when a challenge is made to such a finding of fact by a trial judge, the Court is not persuaded that the Court of Criminal Appeal failed to examine for itself the critical issue of fact.

Now, if you go from there to the top of page 57 in Kyriakou, that is the way the court approached the matter in this case and that is the way the court approached it in Kyriakou.

This Court does not sit in judgment from factual findings made by trial judges on the voir dire.  If there is no evidence to support a finding, or if a judge has applied wrong principles -

Now, in effect, we submit that the court has to examine factual findings for itself.  Now, the same error is disclosed in O’Donoghue 34 A Crim R 401. So we, in fact, submit that this case, the very approach taken by the Court of Criminal Appeal raises a question of general importance as to what the nature of an appeal is under section 6(3). We say that it takes one directly back to House v The King and the correct application of that case.  That is our first point in reply.

Secondly, with respect to onus and burden of proof, we submit that the applicant can hardly be blamed for not taking the point in the lower point when the law is regarded as being settled in New South Wales, as my friend submits and, as I said before, there is no finding on that onus.

Thirdly, we submit that whether or not he could have made out a case of duress in the strict legal sense, it is perfectly clear on the authorities that he was entitled to rely on duress, whether or not he would have failed legally speaking.  There is other material - you have received some material from the Crown - but there is other material to which we would refer in that regard.

McHUGH J:   But if the trial judge rejected his evidence, then even if the onus is on the Crown to prove the absence of duress beyond reasonable doubt, in the practical circumstances of this case, what is the miscarriage?

MR GAME:   Your Honour, the whole point is that burden and onus of proof apply to credibility findings.  You cannot say he rejected beyond reasonable doubt what he had to say, the question is whether or not there is a reasonable possibility.

McHUGH J:   I am not sure that beyond reasonable doubt applies to credibility findings.  It is just another fact.  Proof beyond reasonable doubt applies to ultimate issues.

MR GAME:   But, your Honour, if the question is the believability of something, ie can I reject that account beyond reasonable doubt, it depends where the credibility finding comes in.  But the burden of proof must, in our submission, apply to questions of credibility.  The difference in this case is between “I don’t accept what he has put to me” or “The Crow has satisfied me, notwithstanding the wealth of material before me, that there is no possibility that he acted in some way on the basis of the threat”.  That is to say, the judge would not be left wondering about whether or not he did it big note himself or some other reason.  That is the error, in our submission.

TOOHEY J:   Mr Game, thank you.

Having regard to the evidence adduced before the sentencing judge and the views formed by the judge of that evidence, this is not a suitable vehicle for the elucidation of any principle of law.  The application does not otherwise warrant a grant of special leave to appeal and the application must be dismissed.

AT 12.39 PM THE MATTER WAS CONCLUDED