Parker v Taylor

[1994] HCATrans 293

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P38 of 1993

B e t w e e n -

DAVID CHARLES PARKER

Applicant

and

KEITH WALTER TAYLOR

Respondent

Application for special leave

to appeal

BRENNAN J GAUDRON J McHUGH J

Parker 1 22/4/94

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 1994, AT 11.16 AM

Copyright in the High Court of Australia

MR M.J. McCUSKER, QC:  May it please the Court, I appear

with my learned friend, MR T. RITTER, for the

applicant. (instructed by Dwyer Durack)

MR A.N. HOPE:  May it please the Court, I appear with my

learned friend, MR N.J. TWEEDIE, for the

respondent. (instructed by the Director of Public

Prosecutions (Western Australia))

BRENNAN J: Yes, Mr Mccusker.

MR McCUSKER:  May it please Your Honours, the applicant's

summary of argument I would not think needs

repetition.

BRENNAN J:  I would hope not. You would not get through it

in your 20 minutes.

MR McCUSKER:  I am sure of that, Your Honour. Could I just

briefly state what we consider some of the

important and salient points? First, the appeal

provisions that are contained in the Justices' Act
of Western Australia in section 187 include

provision for appeals from a magistrate's decision

to commit. The importance of committal proceedings

has often been stated. For example, His Honour

Justice Dawson in Grassby, referred to the

importance of those proceedings as preventing cases

which ought not to go to trial from going to trial

and thereby avoiding both public waste of funds and
personal humiliation and cost to the defendant.

The Western Australian legislature has, in our submission, recognized that importance by giving a

statutory right to appeal in section 187, which

provides that leave to appeal shall be granted by

the supreme court unless it appears that the

application is frivolous, vexatious or there are no

arguable grounds for the appeal.	Now that being
the state of the legislation, in our submission,

the appeal ought to be treated, once leave has been

granted as it was here, in the same way as any

other appeal.

Your Honours, it is submitted that the

Full Court's approach to the appeal was

fundamentally flawed. The question of the test to

be applied under section 186 of the Justices Act

that that is sufficient to put on trial is a matter

of some debate still, surprising though it may be.

There are two schools of thought as to the

sufficiency which is required: one school, which

we would cleave to, is that the sufficiency of

evidence falls to be tested by reference to the

requirement that a jury may be satisfied beyond

Parker 22/4/94

reasonable doubt. The authorities are referred to

in a summary in the affidavit in support of the

application for special leave, which appears at the

appeal book, page 133, Your Honours, where a number

of the authorities are set out, and it can be seen

that in particular in Western Australia, the case

of Briggs, the lessor standard appears to have been the favoured standard. That standard may be simply

stated as being that it is sufficient, if there is

evidence from which a jury could infer, the

relevant fact to the - - -

BRENNAN J:  Mr Mccusker, you are not addressing the major

obstacles which stand in the way of a grant of
special leave in this case, namely, that it is a
matter in which you seek to challenge an order for

committal for trial, and the view of this Court

with regard to special leave to appeal in matters

of that kind is well known. The second is that

even if you were successful in obtaining a grant of

special leave and you were to be successful on the

appeal and the order of committal were to be

quashed, the Director of Public Prosecutions still

has a discretionary power to proceed ex parte or,

at least, on an ex officio indictment.

MR McCUSKER: Whilst that may be so in theory, Your Honours,

it is submitted, with respect, that that ought not

to deter this Court from dealing with a matter

which is provided for by the Western Australian

legislation to be subject to appeal.

BRENNAN J: Well, that is a matter for the Western

Australian court, but why should this Court become involved?

MR McCUSKER:  Because the court below in exercising its

appellate function, Your Honours, has erred in a

fundamental way in applying a test of sufficiency

which is not supported, in our submission, by

principle or by the weight of authority. The

approach which the court below took to this

question but was based essentially on the standard

suggested as to sufficiency in Briggs case, it

leads to this conclusion, that where a court

considers there is some evidence from which a jury

might conclude that - in this case there was

theft - that would be sufficient, notwithstanding

that it may not be evidence of such sufficiency as

to enable a jury to conclude beyond reasonable

doubt that that was the case. It is a different

standard and a fundamentally important difference.

BRENNAN J:  Do you want this Court to grant special leave,

to lay down the standard for committal proceedings

and then to examine the evidence to determine

sufficiency?

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MR McCUSKER:  Your Honours, an examination of the evidence

would be very brief indeed. Could I illustrate it

by reference - - -

BRENNAN J: 

How long did the committal take?

MR McCUSKER: 

The committal took a considerable time but,

for the purpose of this appeal, there is virtually
no dispute as to the salient features of fact.

Could I illustrate it by reference to one of the

cheques that was paid into the relevant account:

that is the cheque drawn at a time when there was

no election in sight - an election had been held

more than a year ago - a cheque drawn by Hancock
was paid into the relevant account by the applicant

himself.  The cheque, in fact, was made payable to

account number 123, which was quite meaningless.

There was no evidence of any communication of any

direction from Hancock to the applicant or any

other correspondence of any nature, verbal or

written.  The court below nevertheless held by a

majority that there was evidence from which a jury
could infer that the cheque had been paid to the
applicant with a direction as to how the funds were

to be used. There is, in our submission, no

possible basis upon which a jury could conclude

that fact beyond reasonable doubt. That is the
short scope of that evidence.

BRENNAN J: That is one of eleven.

MR McCUSKER:  Yes, Your Honour, but we do not seek to take

you in detail through every - it is not one of

eleven, it is one of many cheques, but we do not seek to take the Court through a large number of

cheques; we simply seek to refer to the main

cheques. The total amount stolen in this case, or

allegedly stolen, was $59,000. There was one

cheque for $20,000. There was a further cheque for

$30,000, which fell virtually into the same

category with one exception, and that was that the

cheque was made payable to the account number.

There was no evidence as to the knowledge of the drawer of the cheque as to what the account number

signified. There was no evidence as to who put the

account number on the cheque itself. It is true

that there is a further slight difference, but we
say of no significance, and that is that the cheque

was drawn at a time shortly before the writ for the

1989 election was issued, but that is again, all

the evidence that there was. Those two cheques

total $50,000 and it is our submission that if you

simply look at the evidence relating to direction

there is none. The court below thought that the

fact that the account was open for the purpose of

an election campaign fund was of itself sufficient

evidence of a direction being given by the drawer

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of those two cheques. In our submission, a jury might possibly speculate that was the reason the

cheques were drawn or that a direction was given

accompanying the cheques. There is, in fact, no

evidence from which a jury could conclude, beyond

reasonable doubt, that that was the case.

So, in our submission, the court below has

erred in applying the test of sufficiency, and it

is a test which has been the subject of some debate

as noted at page 133 of the appeal book in the

affidavit in support. Cross refers to the

differing views referable to this test and notes

that the trend of decisions in the United States

favours the higher standard, that the evidence must

be sufficient in the sense that a jury could

conclude beyond reasonable doubt, not merely

that there is some evidence from which a jury could

draw a conclusion.

GAUDRON J: But does not that require an analysis of the

whole of the evidence?

MR McCUSKER:  No, Your Honour, it does not.

GAUDRON J: Well, it must, must it not, and not merely the

particular aspects to which you now point, because

the question is not whether any particular piece of

evidence proves any particular fact beyond

reasonable doubt, but whether the evidence overall

establishes guilt.

MR McCUSKER:  Your Honour, we would be happy to simply adopt

the analysis of evidence that the learned

Chief Justice made in his reasons. Although there

was a lot of evidence which at first sight might

prove extremely deterring to this Court - - -

GAUDRON J:  You might be, but it does not seem to me that it

is up to you to decide; the prosecution would have

a say in that too.

MR McCUSKER:  Your Honour, certainly it would, but the

prosecution, I do not think, challenges the

analysis of the evidence made by the Chief Justice,

with one possible exception, and that is why we

file a supplementary outline of argument in

response to the respondent's argument, that is,

that it was contended before the court below by the

respondent that there was some evidence of a system

whereby only cheques which were paid with the

relevant direction would be paid into the account.

The only evidence that is relevant to that

proposition, which was not accepted by the court

below, in any event, by the majority, is that which

is appended to the supplementary outline - it takes

some four or five pages in total - and amounts to

Parker 22/4/94

no more than this: that two persons, who did pay

money into the account, said that they paid money
which they believed was paid with the relevant
direction into the account. It goes no further

than that, and the fact that the account was used

to defray election expenses, as well as other

expenses, is not in dispute between the parties.

So, although looking at the magistrate's

reasons and analysis of various cheques and so

forth may suggest that there is a huge excursus of

the evidence and facts required for this case, in

our submission, there would not be. It is simply a

matter of focusing on the evidence as analysed by

the learned Chief Justice and then looking in

particular at what the learned Chief Justice said,

when he applied the test, at page 102 of the appeal

book. He said there at line 10 - he was dealing

there with the cheque for $20,000 from Hancock

which clearly concerned the majority and so

concerned Justice Murray; that he found, in that

case, there was insufficient evidence. He said:

There is evidence from which it would be

open to a jury to infer that the payment was

in the nature of a donation.

But went on to say:

In the end, however, the jury question would

be whether the members of the jury were

satisfied beyond a reasonable doubt that this

was the only inference which could be drawn,

but -

and I stress "but" -

that question is not relevant at this stage.

And that was clearly an adoption of the Briggs test

which was put forward on behalf of the respondent

as the appropriate test to apply. In our

submission, that formulation of a test is clearly

wrong and should be corrected because, if it is

not, since it is based on an explanation of

sufficiency given in Briggs case by the former

Chief Justice Burt, it is likely to continue to be

repeated as the appropriate test, at least in this

State, if not in others.

Your Honour, apart from the two cheques that I

mentioned totalling $50,000 - and again I stress,

we are dealing with alleged stealing of a total of

some $59,000 - there was evidence in relation to

three other cheques: one given by Gascoigne -

No 47 in the list of cheques appended to the

outline of summary - when Gascoigne who was called

Parker 6 22/4/94

to give evidence as to the drawing of the cheque

said, "I gave no direction", and yet that cheque

was still held to be a cheque paid with a

direction. In the case of two other cheques,

Nos 22 and 57 in that bundle, a man called

Miorada who drew both cheques, said the same thing,

that he gave no direction as to the use of the

cheques. It is submitted that when we are looking

at a charge of stealing, that evidence would be

significant, and no jury could conclude beyond

reasonable doubt, in the light of that evidence,
either, that the cheques were paid with the

relevant direction.

I recognize, of course, Your Honours, that

this Court has said that it is undesirable to

fragment the criminal process directing those

remarks to appeals from decisions in relation to

committal, but this is a case where there is a

statutory provision for appeals from decisions to

commit and the important aspect of this case is

that, in considering the appeal, which it was a

statutory obligation, the Full Court has clearly

erred. It is broader than that too, of course,

Your Honours, because the question of sufficiency

applies, not only to decisions to commit but also
decisions given by a trial judge at the close of

the prosecution case. It is relevant to that

aspect as well. May it please, Your Honours, they

are our submissions.

BRENNAN J:  Thank you, Mr Mccusker. We need not trouble

you, Mr Hope.

This application is misconceived. Nothing is

more clearly established than that this Court will

not grant special leave to appeal to challenge a

committal for criminal trial. In Yates v Wilson,

(1989) 168 CLR 338, at page 339, Mason CJ speaking

for the Court said:

It would require an exceptional case to

warrant the grant of special leave to appeal

in relation to a review by the Federal Court
of a magistrate's decision to commit a person

for trial. The undesirability of fragmenting

the criminal process is so powerful a

consideration that it requires no elaboration

by us.

Observations to the. same effect can be found in

Sankey v Whitlam, (1978) 142 CLR 1, at pages 25 to

26; The Queen v Iorlano, (1983) 151 CLR 678, at

page 680. More recently I said in

Beljajev v Director of Public Prosecutions,

(1991) 173 CLR 28, at page 32:

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The jurisdiction of this Court is not

fitted to the supervision of interlocutory

processes of a criminal trial.

This dictum was agreed by Mr Justice Dawson in

Re Rozenes; Ex parte Bill Burd, unreported,

28 March 1994.

There is nothing exceptional in this case.

Indeed, the argument in support of the application
for special leave focuses largely on the
sufficiency of the evidence led before the

Magistrate. In reaffirming the policy of this

Court, we should not be taken to be making any

observation on the approach to be taken by the

Full Court of the Supreme Court of

Western Australia in the exercise of its

jurisdiction under Part VIII of the Justices Acts

1902 (Western Australia) on appeal from an order of

committal.

Moreover, even if special leave were granted

and an appeal resulted in the setting aside of the

order of committal, the Director of Public

Prosecutions would have the authority to present an

ex officio indictment and thereby to render

ineffective any order made on appeal. This Court

does not grant special leave to make orders subject

to an administrative override.

There is a passage in Minister for Immigration

and Ethnic Affairs v Pochi, (1981) 149 CLR 139,

which may be applied mutatis mutandis to this case.

The Court said that:

"This Court should not be placed in a position where the substance of a decision which it has

affirmed can be overridden by (executive] fiat

and the reasons for its judgment may be

treated by the [Director of Public

Prosecutions] as no more than advice which he

is at liberty to disregard."

For these reasons, we would refuse special

leave. It is unnecessary for us to consider

whether, if these obstacles did not exist, there

would be a case for special leave to appeal.

Accordingly, special leave is refused.

AT 11.35 AM THE MATTER WAS ADJOURNED SINE DIE

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