R v Huebner, R v Maher

[2004] HCATrans 323

[2004] HCATrans 323

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 expedition

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 24 AUGUST 2004, AT 11.42 AM

Copyright in the High Court of Australia

__________________

MR A.J. RAFTER, SC:   I appear for the applicant in both matters, your Honour.  (instructed by Director of Public Prosecutions (Queensland))

MR A.W. MOYNIHAN:   If your Honour please, I appear for the respondent, Huebner.  (instructed by Legal Aid Queensland)

MR M.F. BOSSCHER:   If it please your Honour, I appear for the respondent, Maher.  (instructed by Ryan and Bosscher)

HIS HONOUR:   There is no reason why I should not hear these matters together, is there?

MR BOSSCHER:   No, I think they should be heard together, your Honour.

HIS HONOUR:   All right.  Well, Mr Moynihan, I think it is appropriate I hear from you first.

MR MOYNIHAN:   Your Honour, we are happy to consent to the application for expedition.

HIS HONOUR:   Yes, what about you?

MR BOSSCHER:   We are in an identical situation, your Honour.  We consent to the application.

HIS HONOUR:   Now, Mr Rafter, what is the Crown’s interest in an expedited application?

MR RAFTER:   In short it is this, your Honour, that Huebner ‑ ‑ ‑

HIS HONOUR:   You are the applicant for special leave, are you not?

MR RAFTER:   The Crown is the applicant for special leave and the Crown seeks the expedition orders in both cases.  The reasons are essentially these, that the current position is that Huebner is in custody awaiting sentencing for manslaughter.

HIS HONOUR:   All right.  What are the prospects of Mr Huebner’s being given a non‑custodial sentence?

MR RAFTER:   I doubt that would even be suggested, so his position ‑ ‑ ‑

HIS HONOUR:   And it would be quite a lengthy sentence, would it not, on any view?

MR RAFTER:   It will be.  The only thing that can be said in his case is that since he has been charged on 7 January 2002 that is a considerable time and he remains in a position of uncertainty as to his actual position, bearing in mind that the Crown seeks, if special leave is granted, an order that ‑ ‑ ‑

HIS HONOUR:   And it is somewhat unusual for the Crown to be an applicant in these matters.  I understand that.

MR RAFTER:   The Crown seeks ultimate orders, if special leave is granted, that firstly the conviction for murder be reinstated or, alternatively, that there be a new trial for murder.

HIS HONOUR:   It would be unusual for a conviction to be reinstated on a Crown appeal, would it not?

MR RAFTER:   It is not unprecedented.  There are cases where that has happened.  It certainly would be an unusual course.  In any event, even if the Crown ultimately failed to secure special leave or ultimately failed in an appeal, there is a desirability in Mr Huebner’s position being clarified so far as his sentence is concerned as soon as possible.

HIS HONOUR:   But all the other appellants who are in prison, it is in their interests too, of course.

MR RAFTER:   Absolutely.

HIS HONOUR:   Mr Rafter, there is only one real point, is there not, and that is the so‑called – was it called similar fact evidence or tendency evidence?

MR RAFTER:   That is the main point.

HIS HONOUR:   How would you characterise it?

MR RAFTER:   Similar fact evidence.  The phrase “tendency evidence” comes from the Evidence Acts of other States.  We do not have that in Queensland.

HIS HONOUR:   Mr Rafter, the point is whether the other event – I have just forgotten the name of the young woman ‑ ‑ ‑

MR RAFTER:   The Gazsik event.

HIS HONOUR:   Yes, whether her evidence is capable of affording similar fact evidence of intention.  Is that right?

MR RAFTER:   That is right.  The Court of Appeal held that the similar fact evidence had limited significance and had no bearing whatever on the question of intention.

HIS HONOUR:   Why would not her evidence have been similar fact evidence of an intention to do grievous bodily harm?  Would you call it grievous bodily harm that was actually sustained by that young woman?

MR RAFTER:   No.

HIS HONOUR:   It was not?

MR RAFTER:   No, she did not actually sustain any serious injury at all.

HIS HONOUR:   There were some abrasions.

MR RAFTER:   But the Crown argument was that from the facts and circumstances an intention to cause death or at least grievous bodily harm could be inferred, that is especially from Huebner’s strangling her uttering the words “Why won’t she die?”  There were other relevant facts.

HIS HONOUR:   There was that, that is right.  That was disputed but there was evidence of that.  Something was said to the effect, “Why won’t she go out?” or something like that.

MR RAFTER:   That is right.  Huebner gave evidence in his own defence and that was put in issue, but the Crown’s argument was that it was open to the jury to accept that those words were spoken and it was a matter for the jury to make an assessment as to the significance of all of that evidence.  The defence, on the other hand, placed some reliance upon the fact that there was a pre‑inscribed teddy bear with the complainant’s name on it.  On the other hand, there was evidence in the trial that the two accused heard some noise in the bushes which was perceived to be perhaps someone else being in the vicinity and that might have been why things did not progress any further.

HIS HONOUR:   How old were all these people at the time?

MR RAFTER:   They were relatively young people, your Honour.  I cannot immediately give you the ‑ ‑ ‑

HIS HONOUR:   They were all at the university, were they not?

MR RAFTER:   That is right.

HIS HONOUR:   Have you read that Donna Tartt novel about university students in the United States?

MR RAFTER:   No, I have not.  Your Honour, so far as Maher is concerned, I did file written submissions in respect of both cases yesterday.  I do not know if your Honour has that.

HIS HONOUR:   Yes, I have read them, Mr Rafter.

MR RAFTER:   She has been granted bail now by the Supreme Court, so in a sense her ‑ ‑ ‑

HIS HONOUR:   Tell me, is there any risk, so far as she is concerned, of some alternative or lesser offence in connection with a body or anything of that kind?

MR RAFTER:   Well, the President of the Court of Appeal made an assessment of the evidence and her Honour concluded that it would not have been open to the jury to be satisfied beyond reasonable doubt that she was guilty of murder or manslaughter and her Honour said the only offence that could be established against Maher, which I think her Honour described as a rather compelling case, was one of accessory after the fact.  That carries a maximum penalty of two years imprisonment.  The other members of the court ordered a new trial for manslaughter and she is awaiting that retrial.

HIS HONOUR:   Yes.

MR RAFTER:   Again in her case, the orders that the Crown seeks ultimately if special leave is granted is either reinstatement of the conviction for the murder or a new trial for murder.  This was a case involving a large number of witnesses and there is a desirability – since there is to be a retrial in her case in any event, at least for manslaughter, it is desirable that the trial be held at the soonest possible time.

HIS HONOUR:   I will tell you what concerns me, Mr Rafter.  If I were to grant expedition, undoubtedly there would then be some displacement of another case or cases.  Now, I cannot identify any criminal case in particular that is going to be displaced, but as you would appreciate, most of the cases that come before the Court are appeals by persons who have been convicted, certainly not by the Crown, and those people, if any of them succeed, or some of them who succeed may have a prospect of an acquittal or at least an order for a retrial and a possibility of bail pending the retrial.  So those people, their situation is – if I can put it this way – a much more worthy situation assuming that some of them may have a good appeal than the Crown coming here seeking to displace one of those cases.

MR RAFTER:   Your Honour, I have set out in my written submissions some of the general factors that are taken into account from the judgment of Justice McHugh in Sewell ‑ ‑ ‑

HIS HONOUR:   I read those, but they really do not have anything to do with this case.

MR RAFTER:   Except that the factors which would, I suppose, favour expedition include the attitude of the parties; all parties are in agreement that should occur.  The case would, with respect, appear to be an arguable one.  Sometimes it is possible to make a preliminary assessment that ‑ ‑ ‑

HIS HONOUR:   I certainly would not make an assessment in this case of your prospects for special leave.  I do not like doing it anyway.

MR RAFTER:   No, it is difficult to do so.

HIS HONOUR:   Well, there is one Judge really trying to anticipate what two or three Judges will do and you would be aware that our decisions are not always unanimous.

MR RAFTER:   I would put the case as being arguable at this stage.  It is sometimes possible to make a preliminary assessment that a case appears to have no prospects whatever.

HIS HONOUR:   I certainly would not say that this case has no legs.  You could not say that, for special leave anyway.

MR RAFTER:   That is right.  So it appears to be arguable that the parties are in agreement and there are strong reasons why any retrials are to be had and in Maher’s case, even if the Crown fails at the special leave point or fails ultimately on an appeal, there will be a new trial in her case and given there are a large number of witnesses and given the periods of time involved from the hearing of the special leave application to the hearing of an appeal if special leave is granted and then ultimate judgment, there is going to be a long gap from the time of the offence, which was 18 August 2001, until any actual retrial. 

Now, in all of the circumstances it would, in my respectful submission, be desirable to have the position clarified at the soonest possible date.  But as those comments of Justice McHugh in Sewell indicate, it is, of course, discretionary and the Court naturally takes into account the convenience of the Court and whether or not other cases that are already in the list have to be displaced.  Some of that information, of course, is not known to the parties.

HIS HONOUR:   No, of course not, and I must say I have not made any specific inquiry.  I can tell you that we have some hundreds of special leave applications outstanding, so much so that the calendar for the rest of the year is altered and we are going to have an additional special leave sitting each sittings until the end of the year and probably into next year as well.  So there is a backlog and we are anxious to clear it up.

MR RAFTER:   Your Honour, can I say this, that at the time the application was filed the information that I had was that the only likely hearing date for special leave applications this year was 8 October and there would not be another date available until February or March next year.  Now, since filing the application I have been informed by the Deputy Registrar, Mr Wickham, that there are two other special leave dates, namely, 12 November and 3 December.

HIS HONOUR:   What that information really amounts to is this.  You may not have received it in this form, but the cases for those dates have not yet been fully allocated.  It does not mean that there is some sort of a gap in there that can be filled.  I have to tell you that.  There are some hundreds of cases.

MR RAFTER:   I understand that.  The Crown’s position essentially is this, that if this case could be listed for 8 October without displacing any other case that is already listed, then that would be the most desirable outcome.  That is partly for this reason, that the parties have worked quite quickly on the matter.  The outlines have been filed reasonably quickly and the case is almost ready to go.

HIS HONOUR:   I can understand anybody would want to get it resolved and any system of justice is better when it functions speedily.

MR RAFTER:   Since the application was filed I think all of the parties, aware that the only date this year at that time was 8 October, have worked towards that date and I think it suits the convenience of the counsel who have been engaged in respect of the matter.  That is not a matter of enormous importance, I suppose, but it is just one matter that could be put into the equation and, as I say, the position was for the Crown that if this matter could be listed then without displacing any other case that was the most appropriate thing to do.  If there is no order for expedition, I suppose there is a risk that the case will not be listed this year at all and that would seem undesirable given the next special leave date next year may well not be until about March.

HIS HONOUR:   It may not even be until June until the Court comes up here.

MR RAFTER:   It may not be now.  The judgment of the Court of Appeal was delivered on 6 April this year so ‑ ‑ ‑

HIS HONOUR:   I have to tell you that that is not such a long period by comparison with what we get generally.

MR RAFTER:   I know from past experience that that is not enormous.  It is just in this case where there is a retrial pending, a large number of witnesses involved in that trial and strong grounds for the position of the respondents being resolved as quickly as possible there is a good case for expedition, in my respectful submission.

HIS HONOUR:   Why would not Mr Huebner be resentenced anyway?  He has not been resentenced, has he?

MR RAFTER:   No.  There does not seem to be much point ‑ ‑ ‑

HIS HONOUR:   I cannot understand why that has not happened.

MR RAFTER:   There does not seem much point in that happening in the event that the Crown succeeds.  The murder conviction will be reinstated or there will be a retrial for murder, so there does not seem much utility in having sentence pronounced while he is in a state of uncertainty.

HIS HONOUR:   But if there is no grant of special leave, what harm does it do to sentencing?  It is about an hour, a couple of hours of court time.  I do not understand why – it would be a matter for the Crown, would it not, to bring the matter on?

MR RAFTER:   It would be a matter for both parties, I suppose.  I am not sure ‑ ‑ ‑

HIS HONOUR:   No, I would have thought by the Crown.  There is an order, is there not, of the Court of Appeal that he be resentenced?  I do not understand why that order has not been carried out.

MR RAFTER:   I imagine that the Crown and the defence have adopted the joint position that it would be desirable to have his position clarified.

HIS HONOUR:   It removes one element of uncertainty.  He knows exactly what time he will have to serve if the current conviction stands.

MR RAFTER:   But he will still have a high degree of uncertainty because he will be facing the prospect of a conviction for murder being reinstated or a retrial for that.  So, there does not, with great respect, appear to be much utility in sentencing him.

HIS HONOUR:   I do not know about that, Mr Rafter.  I am not saying you are wrong, but I am certainly not satisfied that that is so.  In fact, the order has been made by the Court of Appeal.  I would have thought that the proper thing would be for the Director to see that that order is carried out by bringing the matter before a single judge.  It would not go back to the same judge, would it?  It would probably be a matter for the Chief Justice of the Supreme Court to allocate a judge to hear it.

MR RAFTER:   Well, the Chief Justice was the presiding judge on the trial.

HIS HONOUR:   I know.  I really do not understand why, if a court makes an order, the Crown does not give effect to that order.

MR RAFTER:   The Crown is not preventing that being done.  I imagine a joint ‑ ‑ ‑

HIS HONOUR:   No, I know that, but it is not giving effect to it.  That order has not been rescinded.  It is in place.  It has just been ignored.

MR RAFTER:   The matter would be reviewed at a callover from time to time and I imagine the joint position of the parties has been to await the outcome of these proceedings in this Court.

HIS HONOUR:   Has it been called over?

MR RAFTER:   I have not been there, your Honour, but I would be fairly confident that it would have been.  I mean, that is the system in the Supreme Court that cases are reviewed from time to time and this case would need to be reviewed because there are charges against both respondents with respect to the Gazsik incident as well and they, as I understand it, have been placed in abeyance until this matter is finalised.  All charges were on the indictment, but the pre‑trial ruling of Justice Philippides severed the Gazsik charges from the murder charge, although the evidence was held to be admissible as similar fact evidence.

HIS HONOUR:   Right, yes.

MR RAFTER:   Your Honour’s comments can be taken into consideration, I suppose, and, as your Honour says, that would remove one aspect of the matter, but on the other hand I am sure the parties have given careful consideration to how they see the matter being conducted appropriately but, as I say, those comments can certainly be taken into account.  There would nevertheless, even if the sentencing takes place, be good reason for expediting the special leave application, in my submission.

HIS HONOUR:   Right, thank you, Mr Rafter.  Do either of you gentlemen want to say anything?

MR MOYNIHAN:   I have nothing, your Honour.

HIS HONOUR:   What is your view about the question of sentencing?

MR MOYNIHAN:   I am not sure whether it has been called over.  I have no instructions on that.  It would really be in the hands of the Supreme Court as to if it is called on ‑ ‑ ‑

HIS HONOUR:   And for the Crown too, I think.

MR MOYNIHAN:   And for the Crown.

HIS HONOUR:   I am not suggesting anything on your side.

MR MOYNIHAN:   We certainly could not prevent it if it was called on.

HIS HONOUR:   No, and in a sense it might even be in your client’s interest in a way.

MR MOYNIHAN:   All the time he is serving now is able to be declared as time served under any sentence, whether it be ultimately a reinstatement or a new sentence of life imprisonment or, alternatively, a notional sentence for manslaughter.

HIS HONOUR:   Very few cases actually succeed in getting special leave and there is the element of double jeopardy of a Crown appeal.  All right, thank you.  Did you wish to say anything, Mr Bosscher?

MR BOSSCHER:   No, I have nothing I wish to add, thank you, your Honour.

HIS HONOUR:   Yes, Mr Rafter.

MR RAFTER:   Just on that matter that your Honour raised with my learned friend, Mr Moynihan, there may be good reason for holding up the sentencing and it is this, that the sentencing court is allowed to declare pre‑sentence custody only in circumstances where the pre‑sentence custody relates solely to the offence in respect of which the sentence has been pronounced.  So, if he stood for sentence for manslaughter alone the court would not be able to declare pre‑sentence custody because he has been in custody since January 2002 in respect of the Gazsik matters as well.  The court could make an appropriate adjustment to the head sentence that it imposes to reflect that.

HIS HONOUR:   That is right.  There are obviously ways of accommodating it.

MR RAFTER:   I imagine that one possibility for the stance being adopted by the parties is this, that it is considered desirable, at least by the defence, to await the outcome of these proceedings before determining what is to happen in respect of the Gazsik charges.  If the Crown fails here, then I imagine there could be – I cannot guarantee it – a resolution of the Gazsik charges that would allow Huebner to be sentenced for manslaughter and the Gazsik charges at the one time.  That would enable the court to declare all of his time in custody as time already served under the sentence.

HIS HONOUR:   In any event it can plainly be accommodated by various orders.

MR RAFTER:   It can be, but the tidier way of approaching the matter is to declare the pre‑sentence custody and I would simply indicate that at the trial there was very little challenge to Gazsik’s evidence.  There was the aspect

that your Honour has already made reference to.  There was little challenge to it.  That is not to say that the charges themselves would resolve, but there would at least appear to be a theoretical possibility of that and, in my respectful submission, it would be an appropriate case to have all matters dealt with at the one time.  So that is perhaps something that the parties have taken into account in deferring the sentencing until after this matter has been decided.  Thank you.

HIS HONOUR:   Thank you, Mr Rafter.

This is an application by the Director of Public Prosecutions for expedition of her application for special leave to appeal from two decisions of the Court of Appeal.  One of those decisions was that a conviction for murder of the male respondent be set aside and a conviction of manslaughter substituted.  The other decision in respect of the female respondent was that her conviction for murder also be set aside and that it be ordered that she be retried for manslaughter.  The Court of Appeal also ordered that the male respondent be resentenced as, of course, the conviction against him had been reduced to one of manslaughter. 

The applicant seeks expedition of the application for special leave to appeal principally upon the ground that it is desirable that the uncertainty with respect to both of these respondents be resolved, and because of the risk which is present in any situation of this kind, that witnesses may become unavailable or memories may fade.  These regrettably are the consequences of any legal system in which instantaneous trials and retrials are simply not possible.

The point upon which the applicant will seek to rely in particular on the application for special leave, is a point of similar evidence, the Court of Appeal having taken the view, contrary to that of the trial judge, that the activities of the respondents on a former occasion were capable of raising an inference of an intention to cause grievous bodily harm or to kill.  The point is certainly one that is arguable, at least for the purposes of an application for special leave, albeit that special consideration such as to the double jeopardy principle may have to be considered as this is a Crown appeal.

I accept that it is, of course, desirable that uncertainty be removed as soon as possible and that ideally this matter, together with all other matters, should be disposed of expeditiously.  In the circumstances, however, I do not think that any sufficient basis has been shown for the displacement, which would inevitably occur, of other applications for special leave which are pending in the Court and of which there are a fairly large number. 

It is accepted on all sides that the male respondent is likely to be obliged to serve a custodial sentence of some considerable duration even if his conviction for manslaughter is not quashed and a conviction of murder or a retrial substituted.  The female respondent is on bail and, apart from the prejudice attaching to uncertainty, is otherwise unaffected by the current situation.

Accordingly, I must dismiss the application. 

AT 12.12 PM THE MATTERS WERE CONCLUDED