R v Huebner, R v Maher

[2004] HCATrans 519

[2004] HCATrans 519

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B22 of 2004

B e t w e e n -

THE QUEEN

Applicant

and

SVEN HUEBNER

Respondent

Office of the Registry
  Brisbane  No B25 of 2004

B e t w e e n -

THE QUEEN

Applicant

and

AMY LOUISE MAHER

Respondent

Applications for special leave to appeal

GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 10.10 AM

Copyright in the High Court of Australia

__________________

MR P.A. KEANE, QC, Solicitor‑General of the State of Queensland:   If the Court please, I appear in each application with MR A.J. RAFTER, SC for the applicant.  (instructed by Director of Public Prosecutions (Qld))

MR P.J. CALLAGHAN, SC:   May it please the Court, I appear with my learned friend, MR A.W. MOYNIHAN, for the respondent Huebner.  (instructed by Legal Aid Queensland)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS G.A. BASHIR, for the respondent Maher.  (instructed by Ryan & Bosscher)

GUMMOW J:   We will hear you on both matters, Mr Keane, and then we will go to counsel if need be.

CALLINAN J:   Mr Solicitor, can I ask you one question before you begin.  The case does not seem ever to have been put upon the basis of section 302(1)(b) of the Code, does it?  That is the provision that ‑ ‑ ‑

MR KEANE:   That is right, your Honour. 

CALLINAN J:   So the finding of murder on that basis would not have been open?

MR KEANE:   That is right, your Honour.

CALLINAN J:   I must say on the facts it looked as if that might have been a possible way of putting the case.

MR KEANE:   And, as your Honour observes, it was not.  It was put on the footing that it was open to the jury to infer that the killing occurred with intent to kill or to do grievous bodily harm.  Your Honours, if we can seek to explain ‑ ‑ ‑

CALLINAN J:   If they are a retrial, would that be a basis upon which the case could be put under (b)?

MR KEANE:   Your Honour, we would submit it would be open.  The Crown would not be precluded from seeking to ‑ ‑ ‑

HEYDON J:   Can that arise?  Ms Maher is going to have – there has been an order for a new trial on manslaughter only.  Presumably, if your appeal succeeds, it could lead to the following results:  the verdict of murder stands or a new trial.  That would be a curious compromise between the desires of both parties.

MR KEANE:   Well, in relation to Ms Maher, your Honour, our application is that the order of the Court of Appeal be set aside.

HEYDON J:   Which would leave the murder.

MR KEANE:   And that she would be retried for murder.

HEYDON J:   But she is ‑ ‑ ‑

MR KEANE:   That is the alternative order we would seek.  The primary order we would seek ‑ ‑ ‑

HEYDON J:   Alternative to the conviction standing?

MR KEANE:   Yes, that she be retried for murder.

CALLINAN J:   And under section 7 she could be convicted of murder on the basis of Huebner committing murder under (b).

MR KEANE:   Yes, your Honour.  Your Honours, we submit that that is a distinctly open possibility because the known facts are that the deceased died while in the company of both the respondents.  She died because she was strangled by a rope placed around her neck.  The known facts are that it was actually put there by the respondent Huebner.  There was blood of both Huebner and the deceased on the carpet and the curtain of the computer room of the house where the respondents were living, and hence the death of Ms Roberts is explicable on the hypothesis that they murdered her in the course of a struggle, and we say they murdered her because, with the evidence of Gazsik, that tends to establish, as the Court of Appeal recognised, the possibility of joining Gazsik with Huebner in the actual act of killing in the pursuit of some form of sexual gratification.

Now, it is our submission that that hypothesis was one which the jury was entitled to regard as established beyond reasonable doubt.  The only alternative hypothesis to explain the death of Ms Roberts – namely, that she died alone in the computer room by misadventure, having been bound and left alone there by Huebner while he and Maher were, for no particular reason, sitting in the adjoining room – was one which the jury was entitled to and could safely reject.  But the Court of Appeal held that a reasonable jury could not safely convict either of them for murder.  Your Honours will see that from page 114 of the application book in paragraphs [127], particularly lines 25 to 35, and in the case of Ms Maher, paragraph [129].  Your Honours, further to the ‑ ‑ ‑

GUMMOW J:   They seem to fix on this expression “intention to kill”.

MR KEANE:   Yes, your Honour, as if the intention to kill was something that had to be established by a body of evidence different from the body of evidence from which an inference of intention to kill could have been drawn from the fact of the killing certainly by no one else and in circumstances where that happened by strangulation.  Further to the objective circumstances of death which we have mentioned, there is the circumstance that the respondents went to great lengths to conceal their involvement in her death and to prevent the corpse being found to the extent to which, in our submission, the jury would be entitled to conclude – as they were indeed entitled to conclude – that the unintentional death hypothesis advanced by Huebner’s evidence was part of a series of lies intended to conceal the truth, the truth being that the respondents had murdered Ms Roberts. 

CALLINAN J:   Mr Solicitor, accepting for present purposes that a great deal of what you say is correct, the Court of Appeal seemed to think that on any view the verdicts were unsafe and unsatisfactory.  Does that overstate it?  I rather thought that Justice Williams, after his earlier analysis at page 114, took the view that independently, as it were, of specific criticisms that might have been made, the verdicts were unsafe and unsatisfactory.

MR KEANE:   Your Honour, we would submit that one cannot really understand it in that way.  If your Honour goes back to the earlier part of his Honour’s reasoning at page 112 and looks at paragraphs [120] and [121] your Honour will see in [120] the suggestion at about line 45:

Roberts was clearly a willing party to the visitation –

and then he deals with the presence of blood and suggests that is hardly probative.  Then in [121] he deals with the question of the lies and concealment, and concludes in relation to that at 113 at the end of paragraph [121]:

If Huebner (and Maher) acknowledge some responsibility for the unlawful killing of Roberts then the subsequent conduct is explicable on the basis that they were endeavouring to avoid the consequences of that.

Now, your Honours, in our respectful submission, to do that is to deny the jury its perfectly proper function of determining whether the conduct of the accused was so disproportionate in the circumstances to be merely a recognition of embarrassment or, indeed, even responsibility for an unintentional death ‑ ‑ ‑

CALLINAN J:   Well, accepting all of that, there is plenty of authority that says flight and lies and concealment can be explained often on bases other than guilt.  Was there any direction by the trial judge to that effect?

MR KEANE:   There was, your Honour, and your Honours will find it in the record at page 47 commencing at line 19 and concluding at 48 at line 40.  That direction that his Honour gave was, in our respectful submission, the orthodox Edwards direction alerting ‑ ‑ ‑

CALLINAN J:   Well, that is the lies.  What about the flight – well, not flight but ‑ ‑ ‑

MR KEANE:   Well, deceptive conduct generally, your Honour, in terms of the concealment of the body, laying the false trail, then the lies.  They are all, in our respectful submission, part of this body of conduct reflecting a consciousness of guilt and, in our respectful submission, it then being for the jury, properly instructed, to decide what they make of that.  Indeed, the very idea ‑ ‑ ‑

CALLINAN J:   I understand that point.  What about the very strong view that the Court of Appeal took about the misuse of the Gazsik evidence?

MR KEANE:   Your Honour, the Gazsik evidence was held by all of their Honours to be inadmissible to assist in proof of motive or intent.  It was accepted, certainly by Justice Williams and Justice McPherson, that it was admissible to establish at least a link between the two accused and, as Justice Williams himself recognised at page 115 paragraph [130] in the second‑last sentence of that paragraph:

The Gazsik evidence, given appropriate directions to the jury, could support the inference that her relationship with Huebner was such that she would have been a party to the bondage episode.

Now, your Honour, that is actually suggesting that it tends to put ‑ ‑ ‑

CALLINAN J:   But that is an important qualification, is it not, “given appropriate directions to the jury”?

MR KEANE:   And, your Honour, we are addressing the ‑ ‑ ‑

CALLINAN J:   They were very critical of the directions about the Gazsik evidence.

MR KEANE:   In relation to that they held that the Gazsik evidence could not have been relied upon to show motive and thus intent.  Could we say two things.  Firstly, your Honours, we are talking, with respect, about two possibilities:  one of the conviction being restored, the second whether, on a properly conducted trial, accepting your Honour’s concern about criticisms, there could be a safe conviction of murder.  As to both, we would say this, with respect.  The evidence of Gazsik, which both Justice Philippides at the earlier hearing and the Chief Justice regarded as admissible, was admissible in this respect.  Human experience is that human beings do not just die of asphyxiation.  Force is necessary.  The application of force is usually intentional.  It is usually unwelcome by the person to whom ‑ ‑ ‑

CALLINAN J:   Well, I can think of lots of way in which it could perhaps be admissible, Mr Keane.

MR KEANE:   And here, your Honour ‑ ‑ ‑

CALLINAN J:   You do not have to persuade me for my part that it could be admissible, but the use to which it is put and the way in which directions are given about it are different matters.

MR KEANE:   Your Honour, here, in our respectful submission, it affords a reason explaining the application of force to ‑ ‑ ‑

CALLINAN J:   Exactly.  It shows that they were familiar with a method of killing from which this young woman, the victim, died.

MR KEANE:   And, your Honour, in the course of the Gazsik incident expressed an intent, “Why won’t she die?  If you just cease struggling you’ll be all right.  If you continue to struggle I’ll pull the pulleys on the noose around your neck and you will die.”  Now, it is for the jury to make what it does of that evidence, but that is evidence of intent, in our respectful submission.  It is admissible, in our respectful submission, on the basis that evidence of that kind was held to be admissible in O’Leary’s Case, which is referred to in the judgment of Justice McHugh in this Court in Pfennig, 173 CLR 461 which is the first case on our list. If we could just ask your Honours to look at Pfennig and in particular at page 524.  The citation from the judgment of Justice Dixon in O’Leary’s Case at about point six on the page:

“The part which the prisoner took in the drunken orgy which, as the facts suggest, culminated in the fatal attack upon the deceased man would appear to me to be relevant to the question whether the prisoner was the assailant and, if so, whether he was at the time capable of forming, and did form, the intention which would make his crime murder.”

CALLINAN J:   I can see how it could be admissible.  What do you say about the fact that it is a Crown appeal, Mr Keane?

MR KEANE:   Your Honours, we appreciate that the bar is high.  Nevertheless, the circumstances are such that having regard to the observations of this Court in Benz, which we set out at the beginning of our outline, we would submit that in point of principle it is important for this Court to ensure that juries - and, with respect, not judges of the Court of Appeal - decide whether evidence of the self-serving kind given by Huebner should be accepted before deciding whether it affords a rational hypothesis consistent with innocence, and particularly in that regard it is important in point of principle that this Court make it clear, contrary to the view taken in paragraph [121] of the Court of Appeal’s judgment, that it is for the jury to decide what to make of the self-serving evidence, particularly in the light of the known facts and the conduct of the respondents involving their concealment of the body and their persistent lies as indicating a consciousness of murder; not just something which is a bit embarrassing.

HEYDON J:   Mr Solicitor, Chief Justice Mason said “This Court cannot allow an error of principle, especially in the law of evidence, to remain uncorrected”.  In paragraph 3.6 you submit that the Court of Appeal’s approach to consciousness of guilt was inconsistent with its decisions in Wehlow and Box.  Could you just explicitly say in two or three sentences what the differences are that you are referring to?

MR KEANE:   If your Honours go to paragraph [121] in the judgment of Justice Williams, with whom relevantly the other members of the court agreed, your Honours will see that his Honour says at the bottom of 112:

Before Huebner’s admission as to responsibility for the death, that evidence was of particular significance because it indicated Huebner and Maher went to great lengths to deflect away from them the police investigation into the disappearance of the deceased.  But once it is accepted that the deceased met her death at the hands of Huebner the evidence has little or no probative value on the question whether the death was intentionally caused or was by misadventure.  If Huebner (and Maher) acknowledge some responsibility for the unlawful killing of Roberts then the subsequent conduct is explicable on the basis that they were endeavouring to avoid the consequences of that.

In other words, your Honour ‑ ‑ ‑

HEYDON J:   I understand that, but does that emerge from Wehlow, Box and whether Woolley and Rice represent the law in Queensland - those things that you refer to on page 126?

MR KEANE:   Your Honour, that is contrary to what we submit those decisions establish.  Indeed, it is contrary to the footing on which the Edwards direction is given because, Edwards being a decision of this Court, the point about the Edwards direction is that the jury must be alerted to the possibility that there are other reasons other than a consciousness of guilt of the charge, and particularly of the most grave charge, which may explain the conduct, but then the evaluation of that conduct is a matter for the jury.  In our respectful submission, the best case for us on this is the decision of the Victorian Court of Appeal in Rice, to which we have referred in paragraph 3.5, and in particular in that – which is item 10 on our list – and in particular the passage that starts at page 412, by reference to the citation from Justice Cardozo where his Honour said:

The man who secretes a body and lies about it may be found, in most cases, to be concealing his own crime, and therefore to be the murderer.  That is so because personal guilt, unless the circumstances point to some other connection, is the reasonable inference.

Then his Honour goes on for several pages to explain why it is that such evidence is admissible not simply in respect of the lower charge relating in that case to manslaughter but as well to a charge of murder to a point where  in that case the court says that where below the charge of murder had been withdrawn, they would not have withdrawn it.

CALLINAN J:   Mr Keane, I cannot understand why, when the prosecution did not know the precise way in which the unfortunate woman met her death, it did not put the case upon a number of alternative bases.  It could not have been criticised for doing that – one of which would have been 302(1)(b).  It is the one we have talked about before, Mr Keane.

MR KEANE:   Your Honour, it was raised but I am not – it was raised but it was not in any event pursued.

CALLINAN J:   The Crown could not know precisely how she met her death.

MR KEANE:   No, your Honour.  That is why the Crown case was put on the footing that the inferences that could be drawn from the known facts and those known facts, absent an explanation, absent an alternate hypothesis, reasonably based and consistent with innocence, the jury was ‑ ‑ ‑

CALLINAN J:   I mean, even if some participation in whatever they were doing was consensual on the part of the victim, that does not mean that the Crown should accept that everything that happened, apart of course from death itself, was consensual.  You just could not know.  The Crown could never know.

MR KEANE:   One understands that, your Honour, but of course that is often the case in cases where the only people who can give evidence about the death are the participants.

CALLINAN J:   It frequently happens.  That is why ‑ ‑ ‑

MR KEANE:   And in those cases, your Honour, juries frequently draw the inference, as they are permitted to do quite safely, that the deceased was done away with by murder.

CALLINAN J:   Exactly.  The jury ‑ ‑ ‑

MR KEANE:   Weissensteiner is a classic case.

CALLINAN J:   The jury will not know either, but they can still be satisfied that a murder was committed.

MR KEANE:   Exactly, your Honour.  Your Honours, the buzzers have gone.  Might we just say one further sentence.

HEYDON J:   It is really entertaining, Mr Solicitor.  Keep going.

CALLINAN J:   It is my fault, Mr Keane.  You go ahead.

MR KEANE:   Your Honours, just simply in terms of the importance of the case in terms of the administration of justice, an aspect of it is that as the Court of Appeal’s decision shows, it cannot be accepted that the death happened in the way Huebner said it did.  The jury certainly did not accept his evidence, and the Court of Appeal recognised that.  The appropriate basis on which to sentence Huebner, and indeed Ms Maher if she is sentenced either on manslaughter or retried and convicted of manslaughter, on the present state of what the Court of Appeal has done is simply impossible to discern.

GUMMOW J:   Now, you need an extension of time, Mr Solicitor.  Do you want to say anything about that?

MR KEANE:   Your Honours, we do not apprehend anything has been said against it and it is, I think, a matter of moments.

GUMMOW J:   All right.  We will see what develops.

HEYDON J:   Has Huebner been resentenced?

MR KEANE:   He has not, your Honour.

HEYDON J:   That is pending the outcome of these proceedings?

MR KEANE:   It is, your Honour.  He has not been sentenced at all, your Honour, I should say.  Thank you, your Honours.

GUMMOW J:   Yes, Mr Callaghan.

MR CALLAGHAN:   Thank you, your Honour.  The submission on behalf of Huebner is that the Court of Appeal did indeed come to the conclusion that on any view the verdicts were unsafe.  Your Honours have been taken to paragraph [127] at page 114.

GUMMOW J:   I know.  But why were they unsafe?

MR CALLAGHAN:   Because of the view the Court of Appeal took of the facts, and that is what is really being taken issue with here, is a view of the facts taken by a Court of Appeal whilst reviewing a verdict which was said to be unsafe.  In doing that ‑ ‑ ‑

GUMMOW J:   You mean a view of the evidence.

MR CALLAGHAN:   A view of the evidence, yes.  Of course, that is the obligation of the Court of Appeal when that is what is being appealed.  They were in this case as well placed as the jury to assess the Crown case.  There was little in the way of challenge to any of the evidence and, importantly, the view that they took does not mean that they accepted Huebner’s evidence.  Justice Williams makes that very clear in paragraph [127].  In the last sentence of that paragraph he says:

It does not necessarily mean that he is guilty of manslaughter in the precise circumstances that he recounted in evidence.

Given that that is the view the Court of Appeal has taken and the matter was disposed of on that basis, it really means that this application is about an attempt to restore a different view of the facts taken by a different tribunal of fact.  There is no question of importance there.  As has been conceded, the bar is high.  Given what is said in Benz it is not just high but it is for the Crown in this case insurmountable.  They cannot show what Benz says they have to show, which is very exceptional circumstances.  They cannot get around the statements in Benz which Justice Deane in that case at page 120 says were principles which “should not be seen as empty rhetoric which can be formally acknowledged and effectively ignored.” That is what would be occurring were this Court to engage upon an argument about a specific factual situation.

That is, in essence, the argument on behalf of Huebner, your Honours, unless there was anything in particular that you wished me to address.

HEYDON J:   Can I just ask you this.  Section 301(1)(b) was not in play, but were the last few words of paragraph (a) in play?  In other words, “intends to do . . . to some other person some grievous bodily harm”.

MR CALLAGHAN:   Yes.

HEYDON J:   To tie a rope around someone’s neck and engage in what is euphemistically called a bizarre bondage episode is to do acts that are strongly consistent with an intent to inflict some grievous bodily harm, are they not?

MR CALLAGHAN:   Not necessarily, your Honour, given the definition of “grievous bodily harm” which appears at the beginning of the Code.

GUMMOW J:   What does that say?  What does the definition say?

MR CALLAGHAN: I am just turning it up. “Grievous bodily harm” – this is in section 1 of the Criminal Code means:

(a) the loss of a distinct part or an organ of the body; or

(b) serious disfigurement; or

(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.

So the mere placement of the rope around the neck does not necessarily create such an injury.

HEYDON J:   I know you might resist this, but if you took the view that this victim went through the same sort of experience as Ms Gazsik went through, with people gripping her windpipe and pressing their thumbs and forefingers into it and sitting on her legs so she would not struggle, you say that is not grievous bodily harm within that definition?

MR CALLAGHAN:   Well, no.  Indeed, Ms Gazsik did not suffer grievous bodily harm and ‑ ‑ ‑

HEYDON J:   Well, she could not breathe.

MR CALLAGHAN:   Yes, still not grievous bodily harm unless it goes a bit further.  She could not breathe because of the application of temporary force, not because of any injury that was done to her which was going to have a residual effect.

GUMMOW J:   Yes, thank you, Mr Callaghan.  Yes, Mr Walker.

MR WALKER:   Your Honours, could I turn to the questions that were asked…..Mr Callaghan concerning the availability of section 302(1)(b), and this is important because in terms of what might be sought in the admittedly exceptional category of the Crown appeal.  It is to be borne in mind, to adapt the words at the end of Benz 168 CLR 146:

it would not be proper to grant special leave . . . for the purpose . . . the Crown could have the opportunity to use the evidence on a different basis from that on which it was used at the first trial.

In the trial record, which was before the Court of Appeal - it is not before this Court – at page 452 line 18, an exchange is recorded between the counsel for the Crown and the learned Chief Justice which includes the following.  The Chief Justice – and this is about four pages after paragraph (a) had been stated by the Crown as the basis of the case:

THE CHIEF JUSTICE:  How do you rely – what’s the framework, legal framework of your case?

MR FEENEY: Well, at the moment it can only be section 302(1)(a) because I can’t point to the Act –

It is misrecorded as being a statute; it means the action –

required for (1)(b) at this stage.

On our ‑ ‑ ‑

CALLINAN J:   But he does not have to in these circumstances.  The prosecutor does not have to.

MR WALKER:   I am simply drawing to attention, your Honour, that there was an exchange in which there was a disavowal explicitly of paragraph (b).

CALLINAN J:   Yes.

MR WALKER:   In our submission, for the reasons pointed out in Benz, bearing in mind ‑ ‑ ‑

GUMMOW J:   But not of grievous bodily harm insofar as that is a component of (a).

MR WALKER:   That is (a), yes.  And there is quite express exchange.  My learned friend Mr Callaghan has already drawn to the Court’s attention, in answering Justice Heydon’s question, that was squarely before the trial court.

CALLINAN J:   Mr Walker, I do not know the answer to this.  Is there any practice in Queensland – or should I put it this way.  Is there an entitlement to ask for particulars in a murder case?

MR WALKER:   There is always an entitlement.  It will be accorded ‑ ‑ ‑

CALLINAN J:   And the prosecutor will probably say the facts, and those are the best particulars that the prosecutor can give in the circumstances.

MR WALKER:   Your Honour, I have drawn the matter to attention because (a) with great respect, it is an important matter in the way your Honour has raised it, but (b) here is a particular aspect of this case, and the justice of this case is just as important for the respondent as for an applicant in a special leave application.  Bearing in mind the real, not mere rhetorical, force of double jeopardy inhibitions against granting special leave to the Crown, particularly, we would say, strengthened the case where there has been an acquittal of murder, but there is going to be a retrial for manslaughter, in our submission, the notion of the Crown using this in order to restore a murder conviction, using a provision which was disavowed at the trial, the trial being the process which was then checked, as it were, in the Court of Appeal, ought to be dismissed by this Court as an inappropriate use of its admittedly rarely exercised jurisdiction to grant special leave to the Crown where there has been the acquittal, and I do stress there will be a retrial.  Now, that means that the question of unlawful killing, the vindication of the social interest in having that tested, has not been denied by the appeal from which special leave is sought.  It will be available.

May I then move to the last of the matters the learned Solicitor referred to, which in effect seems to invite this Court to undertake an exercise which would expound a clearer or, for the Crown, more amenable factual basis for the sentencing which must proceed in Huebner’s case and may or may not ever come to be required in Maher’s case.  Now, in our submission, that is simply not a task which this Court is equipped to carry out and, second, has never figured in the list of admittedly exceptional categories of case where this Court would entertain a special leave application being granted in favour of the Crown in crime.

The notion that this Court is being asked, as it were, to prepare a different – because unless there is difference, what is the point – set of facts for sentencing ought to be rejected.  If there are facts other than those which are, on orthodox principles, already available from the record required for the sentencing of Huebner, there is a well-known orthodox way of dealing with that, and it requires proof of the sentencing hearing.  Now, it is for those reasons, in our submission, that the last of those matters ought to be rejected by this Court.  Coupled with the first of the matters that I have referred to, it already characterises this Crown’s special leave application as one that should fall outside and be marked emphatically by this Court as falling right outside the limited class that might attract such a grant.  Could I then ‑ ‑ ‑

HEYDON J:   Well, you say there are no arguable errors of principle in what the Court of Appeal did?

MR WALKER:   It would be bold to say there is nothing arguable.  However, one thing is clear.  In answer to your Honour’s question to my learned friend the Solicitor as to why there is supposedly a disparity or discrepancy in approach between a Victorian case, two other Queensland cases and this case, the first proposition is of course that none of the authorities drawn to your attention raises the question of how a change of plea during the course of the trial is to be particularly considered in assessing the question of the use to be made of putatively Pfennig-style evidence.  So at the level of ‑ ‑ ‑

HEYDON J:   No, it is not Pfennig evidence.  This is flight and covering up the traces.

MR WALKER:   Your Honour, I have been guilty of trying to use a label conveniently and it has miscarried.  I, with respect, accept what your Honour says.  The evidence of the earlier incident – if I just call it the Gazsik evidence – in our submission, none of the cases that have been cited, and have been asserted to show discrepancy, are demonstrated by any argument, least of all by the answer to your Honour’s question this morning, to contain an exposition of principle which is denied or qualified in an inappropriate fashion by any exposition of principle in this case.  The fact that there are different factual outcomes is banal and a trivial observation which would not attract a grant of special leave.  The fact that the Crown vigorously contests – that is, seeks to rebut – the factual weighing up that was performed in the exercise carried out by the Court of Appeal according to orthodox approach is again not a ground for special leave.  It is a ground if there is some serious error of principle – and perhaps the word “serious” need not be added ‑ ‑ ‑

GUMMOW J:   Well, I am looking at Benz 168 CLR 110 at 113:

This Court cannot allow an error of principle on the part of a Court of Criminal Appeal, especially in the law of evidence, to remain uncorrected.

MR WALKER:   Quite.  Now, when it is said that this is a decision that sits awry with earlier decisions and threatens to confuse the law so as to have, as Justice Gummow has pointed out, an error of principle sitting there, it requires it to be identified.  There is nothing in the text of Justice Williams’ reasons that has been identified, either in writing or in the address this morning, which sets out by way of exposition of principle anything that sits at odds with what appears in the books beforehand.

HEYDON J:   Well, we may have to agree to disagree on this.  I think paragraph [121] does rest on assumptions that may well be inconsistent with what the Court of Criminal Appeal of Victoria said in Woolley’s Case.

MR WALKER:   Your Honour, and with great respect, one does not find in [121] any exposition of principle which ‑ ‑ ‑

HEYDON J:   No, but in a way it is a kind of ontological problem.  If there had been, the error would be clear.

MR WALKER:   Yes.

HEYDON J:   The fact that the error is hard to discern through the fog does not establish there is not an error.

MR WALKER:   It would be, I suppose – if Your Honour will forgive me, I will deal with it this way.  Imagine as counsel seeking to rely on paragraph [121] in order to counter the citation explicitly of expositions of principle in earlier cases, it would be impossible.  It would be an exercise of interstitial interpretation and the demonstration of logical assumptions, which would be quite self-defeating in its ingenuity.

GUMMOW J:   Yes I know, but have a look at that Benz at page 114 and see what Chief Justice Mason said there as to the identification of the point of principle, about point 5:

The point of principle which, in my view, warrants the grant of special leave –

et cetera.

MR WALKER:   It “arises from the rejection on the ground that the evidence was hearsay.”  So that there was a statement in terms of principle, an applicable rule in that case, that left nothing to doubt as to how principle – that is, the identification of hearsay – was being applied.  No doubt at all in that case.  Now, that is very different in paragraph [121] where - and this goes back to an earlier answer I gave to Justice Heydon - there may of course be argument about the correctness of every element of logic contained in it.  There was argument in the Court of Appeal about just that.

The question is whether, in the exceptional jurisdiction of special leave to the Crown, we have here an answering of the characteristics drawn to attention by Justice Gummow.  Do we have in paragraph [121], and for that matter anywhere else in Justice Williams’ reasons, a statement of principle which may mislead those who follow?  The answer is no.  Do we have ‑ ‑ ‑

HEYDON J:   Well, actually we are going to have to agree to disagree on this.  In Courts of Criminal Appeal in my experience, people are often taking a passage like that in cases and extrapolating from it some principle that suits them, or denying that there is any principle in it that does not suit them.  You do not have to have a chain of authority in order to say ‑ ‑ ‑

MR WALKER:   No, but your Honour would give short shrift to anybody who asserted that paragraph [121] had in any way purported to alter the law as laid down in authoritative expositions of principle explicitly.

GUMMOW J:   You have to remember in Benz the Court divided, did it not, 3:2?

MR WALKER:   Yes.  Justice Mason, for example, was in dissent, though the matters ‑ ‑ ‑

GUMMOW J:   With Justice Dawson.

MR WALKER:   Though the matters to which your Honour has drawn attention are not germane to the dissenting nature of his reasons.  It is for those reasons, in our submission, that it is not possible for the learned Solicitor to actually identify, in terms which explicitly amount to the statement of legal concept or legal rule, what it is held by this Bench that differs, let alone how it differs, from what has been held by other Benches.  That is my answer to that problem.

May I seek to throw another log in the way of a special leave application being granted, and that is how it would affect the disposition of the case below, which is clearly critical and of great importance in relation to the individual justice affecting a respondent in crime when it is a Crown application.  Your Honour Justice Callinan has already drawn to attention that what might be called the Gazsik point, the point upon which, if there is an error of principle to be discerned interstitially in paragraph [121], is said to ground the Crown’s application.  Apart from that point, there were other points upon which the Court of Appeal were emphatic in their dissatisfaction with the course of the trial below. 

First of all, there is the summing up in relation to the Gazsik evidence which, whether admissible or not, still required a summing up.  Your Honours have seen that material; I do not wish to spend any more time on it.  That is important because of the introduction of the notion of thrill kill and the like and co‑operation, where there was absolutely no evidence at all of a common plan between three on the occasion of Ms Roberts’ death at all.

CALLINAN J:   Well, in view of the way the Crown put the case – that is, on (a) entirely, as I understand it – that is right, is it not?

MR WALKER:   Right.  Now, that is ‑ ‑ ‑

CALLINAN J:   If you look at page 110 ‑ ‑ ‑

MR WALKER:   That is where I am about to take your Honours ‑ ‑ ‑

CALLINAN J:    ‑ ‑ ‑paragraph [108].

MR WALKER:   Yes.

CALLINAN J:   What Justice Williams said there seems, with all due respect, to be right. It may not have been right, that the case had been put on the basis of (b) or some other section, but on the basis of (a) he is plainly right I would have thought, with respect.

MR WALKER:   With respect, quite so.  In the Court of Appeal, the way the Crown ran it is of course critical, crucial, decisive, of the way in which the Crown might resist criticisms of summing up.

CALLINAN J:   That does not mean that Gazsik’s evidence is not admissible and admissible for various purposes.

MR WALKER:   Your Honour has grasped my point.  Be it admissible, there is still the question of the summing up.  Justice Williams has pointed out the summing up was deficient, the notwithstanding protest on the side of the defence, because of the insufficient warning about the limited use to which it might be put.  One then moves on page 110 of the application book to paragraph [109].  It is clear that there was intention to kill Roberts being left to the jury in relation to the Gazsik evidence.  Intention to kill.  This was a manslaughter issue that was being decided by Justice Williams at this point; leave aside our attempt to get an acquittal on both counts at the moment.

Paragraph [110] continues that, and is also a matter which, quite apart from the principle the Solicitor raises in relation to admissibility, be it paragraph [121] or anything else, requires as an obstacle in the way of this Court entertaining that question of so-called principle affecting the proper disposition of the case below.  I stress, after all, the disposition of the case below leads to a retrial.  Paragraph [111] says matters which are, with respect, not criticised by the Crown in this Court because they are plain and orthodox and correct, and they were criticisms, deficiencies, identified in the Court of Appeal which would not be affected by this Court taking a different approach on the question of admissibility.

Then one moves – paragraphs [112] and following on page 111 of the application book – to a critical part of our argument against special leave.  It was not just summing up on Gazsik evidence, which might be thought to come along for the ride, as it were, on a Gazsik principle point by the Crown, there was also the conduct of the case by the prosecution in relation to matters of fact critical in a circumstantial case.  For all the reasons the learned Solicitor has put, the way in which the jury exercising its constitutional function is entitled to weigh up and examine all the circumstantial evidence is clearly critical.  But we would turn those reasons back against the Crown in this fashion.  It being so important that circumstantial evidence be approached fairly, the criticisms that extend from paragraph [112] through to paragraph [117] and following are criticisms about fairness of process which required retrial in any event, if not acquittal.

Now, those are reasons which are not of course apt for a grant of special leave in this Court.  This Court cannot be asked to reach, as it were, on a Bench verdicts which were not in accordance with the way the Crown put it on the basis of a record which the Court of Appeal has held to be unfair in what I will call mundane fashion.  That does not mean unimportant fashion; it means it raises no matter of general principle.  Those exaggerations, or gross overstatements, attributed to the Crown in paragraphs [112] and following are of course simply the subject in the Crown’s response in writing in this special leave application along these lines.  We did not get a proper go in the Court of Appeal on those points.  Well, with respect, that is a matter which the record plainly shows was before the Court of Appeal one way or the other or, perhaps to put it more accurately in relation to our grounds of appeal, eventually.

CALLINAN J:   Mr Walker, what applications, if any – I should have looked at this but I have not – were made for redirections by the Crown?

MR WALKER:   I cannot catalogue that to your Honour, but there was argument about directions, and I am not able to answer your Honour in relation to any particular aspect of ‑ ‑ ‑

CALLINAN J:   It is fairly relevant to whether the Crown should now be permitted to appeal.

MR WALKER:   Yes.  I am sorry, I – there is nothing in the record that I am able to draw to your Honour’s attention which, as it were, by forensic stance of the Crown, silence or speech, would affect that matter.

CALLINAN J:   We are very strict upon accused when their counsel have not sought redirections.

MR WALKER:   It is for these reasons that, in our submission, your Honours, the point that is sought to be raised is a point which is not dispositive.  When one couples that with the double jeopardy benefit that ought to be given real weight and concentrate on the fact that this is an application seeking to invoke a rare and special exception to a general

approach, then those are matters which very emphatically remove this case from that special category.  If it would not be dispositive without the Court taking on matters which are not matters of general rule, not matters of general principle, not matters where any departure from orthodoxy has been shown by the Court of Appeal, then there should be no grant of special leave.

GUMMOW J:   Yes, Mr Solicitor.

MR KEANE:   Your Honours, just a couple of things.  First, to accept our learned friend Mr Walker’s invitation, the point of principle for which paragraph [121] of the judgment stands is that an admission, which may be expedient, of a modicum of guilt or responsibility serves to deny entirely the probative force of evidence of consciousness of guilt in relation to the charge.  In our respectful submission, that principle is one which should be decisively rejected.

The second point we make in relation to the conduct of the trial, particularly taking up what your Honour Justice Callinan said to our learned friend, counsel for Ms Maher at the trial addressed the jury after the prosecutor.  He dealt with the “scream and chase” evidence and the other evidence.  The Crown Prosecutor’s address was not the subject of complaint at the trial or, indeed, until, as our learned friend has said, late in the day on the appeal.  Thus counsel at the trial evidently did not consider that the content of the address could, as the authorities say, have deflected the jury from their initial task of evaluating the evidence ‑ ‑ ‑

CALLINAN J:   Well, I must say I was a little surprised at the extent to which Justice Williams thought the address was almost determinative, which I did not read it as being.  Normally a trial judge corrects exaggerations or overstatements or matters of that kind.

MR KEANE:   And, your Honour, in this case no redirection was sought.

CALLINAN J:   On the invitation often of defence counsel.

MR KEANE:   Quite, your Honour.

CALLINAN J:   Which was not given here.

MR KEANE:   Which did not happen here.  In that situation, it is our submission that the applicants were obliged to demonstrate that the errors or omissions of which they complained led to a miscarriage of justice.  In our respectful submission, that brings us back to the point as to whether the verdicts were safe and, alternatively, whether a verdict of murder could safely be rendered.

Finally, your Honours appreciate that the Crown has not come here to seek to have a retrial on the basis of having another go, relying on section 302(1)(b).

CALLINAN J:   Would the Crown give that undertaking?

MR KEANE:   Well, can I just say– and if your Honours require it we will give it – why it should not be required.  That is, that our learned friend spoke about what happened on day six.  There was no disavowal of 302(1)(b).  What there was on day eight was an attempt to rely upon it, an indication by the trial judge that he was not sure that it could go – this is at page 625 of the appeal book in the Court of Appeal – and the Crown said, “Well, I’m not going to argue it further.”  So it was not a disavowal but if we are required to disavow it as a condition of special leave, we will.

GUMMOW J:   We will take a short adjournment.

AT 11.02 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM: 

GUMMOW J:   The principles respecting the grant of special leave by this Court on applications of the prosecution were explained in R v Benz (1989) 168 CLR 110. There are statements by the Court of Appeal in this case, particularly in paragraph [121] of the reasons, which we do not endorse and which should not be taken as indicative of any sound general principle. However, having regard to what was said in Benz and the effective acknowledgment by the Solicitor‑General that the prosecution would be bound to conduct any retrial for murder on the same basis of section 302(1)(a) of the Criminal Code (Qld), we are not persuaded that there should be a grant of special leave in either application.

An extension of time is granted in each case, but each application is refused. 

AT 11.17 AM THE MATTERS WERE CONCLUDED