Parsons v The Queen

[2008] HCATrans 275

[2008] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M129 of 2004

B e t w e e n -

DONNA MARIE PARSONS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 1 AUGUST 2008, AT 11.00 AM

Copyright in the High Court of Australia

MR S. GILLESPIE-JONES:   May it please the Court, I appear with MR M.W.S. DUCKETT, for the applicant.  (instructed by Melinda Walker & Co)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MR S.B. McNICOL, for the respondent.  (instructed by Director of Public Prosecutions (Vic))

GLEESON CJ:   Yes, Mr Gillespie-Jones.

MR GILLESPIE-JONES:   Your Honours will hopefully have had passed on to you an application to amend the special leave question that was admittedly done quite late and, having said that, this case has had a tortured history and the Court might be of the view whether to allow the amendment at the end of the matter perhaps rather than at the beginning.

GLEESON CJ:   We will keep in mind your application and you put the argument you want to put on the merits.

MR GILLESPIE-JONES:   Yes.  The situation is this relates to the duty of counsel in opening the case and I have provided the Court with Clyne, which your Honours will be well familiar with.  That boils down to questions as to whether counsel definitely knows that he has the evidence to support the statements in the opening and definitely intends to adduce evidence to support those statements and the amendment is made because if one has that definite knowledge, recklessness does not really come into it.

GLEESON CJ:   You put your complaint as a criticism of the conduct of counsel, but in terms of asking whether there was a miscarriage of justice, it is a question, is it not, whether the response of the trial judge was sufficient to avoid or avert a miscarriage of justice?

MR GILLESPIE-JONES:   The difficulty in this case where you have a course of conduct that is embarked upon by a prosecuting counsel it necessarily entails a judgment as to the probabilities as to the success of any particular remedy.  The trial judge at that point in time certainly cannot know what is in the mind of the prosecutor and cannot know what it is that the prosecutor has planned.

GLEESON CJ:   I know.  You judge the adequacy of the trial judge’s response with the benefit of hindsight.

MR GILLESPIE-JONES:   One can but, having said that, in my submission, this course encourages bad behaviour.  In other words, if the situation is that one leaves material such as to make the trial moderately unfair, such as the standard test as to a high degree of need is not met such as there is only a moderate degree of need, then the purpose of the prosecutor leading that material is satisfied.  He runs a risk, certainly, but if the jury is discharged, he can start again, but if the material is put forward and he, as in this case, was able to make those statements and really have neutral comments made by the trial judge, then he would take into account also, before even opening his mouth, the prospects of having the conviction set aside in the Court of Appeal.

So the difficulty is that the remedies that apply to an applicant in this situation are taken into account by the prosecutor at the time they introduce that material and that is the difficulty with saying that the ordinary rules with respect to discharge and the ordinary rules with respect to a substantial miscarriage of justice should apply, because they are taken into account, to be cynical about it, by the prosecutor in adducing that material.  It becomes a question of nicely waiting and opening and it causes a degree of cynicism in the judicial process that, in my submission, is not appropriate.

The question that follows from the amendment is, can you have a fair trial if you have an unfair prosecution?  With the benefit of hindsight, that might be a matter that the prosecutor would run the risk of perhaps having failed prosecution but, again, in my submission, there is something incongruous about having an applicant having to cure a matter that has been deliberately put there by a prosecutor.

HAYNE J:   Are you not seeking to run together separate and discrete questions of professional conduct and the statutory question presented for the Court of Appeal, which is, whether on any other ground there was a miscarriage of justice?  The latter question concerns the conduct of the trial and whether the judicial intervention cured any apparent or other unfairness.

MR GILLESPIE-JONES:   In my submission, the two cannot be readily distinguished because the prospects of an application to the Court of Appeal would be taken into account by the prosecutor introducing those matters in his opening that he knew he could not substantiate by evidence.

HAYNE J:   Be it so, let us, for the purpose of argument without any decision of the factual basis of it, assume a case in which a prosecutor deliberately engages in a course of conduct of the kind you hypothesise.  As I say, let us not for the moment consider whether that is this case.  The question when you seek leave here is, what order should the Court of Appeal have made, for the only jurisdiction we have is to make such order as the Court of Appeal should have made, and that puts you back into the standard form criminal appeal statute, relevantly, I would have thought, has there been on any other ground a miscarriage of justice?.  Now, what is the miscarriage of justice to which you point in this case?  It must be, must it not, that the judge’s intervention did not cure what had occurred?

MR GILLESPIE-JONES:   That is correct.

HAYNE J:   The Court of Appeal concluded it did.  Why were they wrong?

MR GILLESPIE-JONES:   In my submission, the application of that general principle with respect to material that has been deliberately introduced on a discharge application is a matter that should have, in this case and in the case that your Honour hypothesised, led to the discharge of the jury in the hypothetical case rather than merely the application of the ordinary principle of establishing a higher degree of need in the judge at that time.  That is how I put it.  I put it because the situation is constructed by the person in whose interests it is that the jury is not discharged and in whose interests the conviction is maintained in the Court of Appeal.  In my submission, it is not possible to separate the two questions.  That is the way I put it. 

If I can go to what was found at pages 171 to 172 of the application book, one sees at paragraph 81, your Honours:

The prosecutor was very experienced and in my opinion he must have well known that when he opened the case as he did he was sowing in the minds of the jury the thought that he had access to information about “the plan” which justified his opening remarks.  On the day before the opening address was delivered El‑Ahmad had given evidence on voir dire and made it clear that he would not give evidence in the trial if called.  The prosecutor then said “I still intend to call him at the trial and see what he says in front of the jury”.  Defence counsel said that El-Ahmad ought not be called if his evidence was not going to be opened by the prosecutor and his Honour said “I don’t think he can open his evidence because he can’t be reasonably confident he is going to get any from him at all”.  The judge said he could be called on voir dire to see if his attitude had changed, and then the position might be reviewed.

Indeed, in the following paragraph, El-Ahmad was called during the trial and declined to answer questions.

The opening address led to an immediate application for a discharge of the jury.  In responding to the complaints of defence counsel that he had opened matters he knew he could not prove, the prosecutor contended that the matters he had asserted were, indeed, capable of being proved by direct evidence or by inference drawn from evidence.  He said that the defence had the opportunity to say to the jury that matters he had opened were incapable of proof, and if that proved to be so then, he said, the jury would acquit.

I will come back to that a little later.  But what that in effect does is hijack the issues in the case.

The prosecutor said he believed he was entitled to open as he had and he urged the judge not to say anything to the jury that suggested otherwise.

In my opinion, the prosecutor knew when he opened that it was highly unlikely that El‑Ahmad would give evidence.  He knew, therefore, that it was unlikely that he could lead direct evidence as to the “the plan”, and that some of the details of the plan which he provided in his opening would not be capable of being drawn by way of inference from the evidence which would be led.  This was not merely an instance of a prosecutor “opening high” as to the probable state of the evidence which would emerge in the trial.  In delivering his address the prosecutor must have anticipated the absence of El‑Ahmad and that in his absence the evidence would not permit him to tie the case together in his final address in the way he sought to do in his opening.

In my submission, that turns this case into the hypothetical case that your Honour outlined before.

In ruling that he would give a direction to the jury in response to the defence complaints, the trial judge said he would not criticise the prosecutor in those directions.  Nor did his Honour criticise the prosecutor in the absence of the jury.  His Honour, it seems, accepted that the prosecutor believed he was entitled to open as he did, and that he was not deliberately adopting an unfair course.  Accepting that apparent conclusion by the judge, it remains the fact that the course adopted by the prosecutor in his opening carried a significant risk of either the judge aborting the trial after the opening address, or the Court of Appeal ordering a re‑trial.  The taking of such a risk was, in my opinion, entirely inappropriate.  The unfairness which in fact attended the opening address was removed by the prompt action of the judge.  The foolishness of the course adopted remained.

In my submission, where in adopting this course the prospects of a successful discharge application being made would follow from the utterances that were made, the success of that application would have had to have been in the mind of the prosecutor, also the success of any subsequent application for leave to appeal.  In those circumstances, it gives the prosecutor power to nicely weight an application such as to be sufficiently unfair, as it were, to not disturb the discretion to discharge nor disturb the

chances of the prosecutor in the Court of Appeal and, dare I say, perhaps the fate of an application in this Court would not have even hit the radar.

In my submission, a deliberate breach of Clyne entails the notion of the court in that case where proof is impossible prejudice may suffice and it takes into account the remedies that the applicant has.  That is the difficulty.  The success of the tactic is demonstrated by the fact that the applicant has no remedy.  The skilled and deliberate breach by definition is always unpunished.  If the court is of the view that there has been a deliberate breach of Clyne, in my submission, there should be an automatic discharge of the jury without imposing on an applicant an obligation to prove the higher degree of need.  I say that because the court at that stage, or even at a subsequent stage, does not know what is in the prosecutor’s mind and cannot expect to know why it is that the rules are broken.

I referred the Court in my letter to Alister.  The difficulty in Alister’s Case, of course, it was the leading evidence with respect to questions that were asked by the prosecutor.  The court said at page 430, about point 6 on the page:

Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking and pointed out that the failure of courts to do more than criticize “breeds a deplorably cynical attitude towards the judiciary”.

In my submission, that is absolutely right.  Unless there are steps taken over and above those that would be available for an ordinary discharge of the jury, then the temptation on those so minded to nicely weight a comment and an opening such as to, as it were, slip under the bar, remains and will always remain and it will remain so far as the Court of Appeal would be concerned as well, because the prospects would be well‑known by an experienced barrister as at the time the opening is made.  May it please the Court.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr McArdle.

The decision of the Court of Appeal in this case turned on the application of settled principles to the particular facts and circumstances.  It does not raise an issue of general principle suitable to a grant of special leave to appeal.  We are not satisfied that the interests of justice require such a grant.

The application is dismissed.

We will adjourn for a short time to reconstitute.

AT 11.19 AM THE MATTER WAS CONCLUDED