R v Taufahema

[2006] HCATrans 526

[2006] HCATrans 526

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S142 of 2006

B e t w e e n -

THE QUEEN

Applicant

and

MOTEKIAI TAUFAHEMA

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 SEPTEMBER 2006, AT 9.58 AM

Copyright in the High Court of Australia

MR N.R. COWDERY, QC:   May it please the Court, I appear for the applicant.  (instructed by Solicitor for Public Prosecutions (New South Wales))

MR T.A GAME, SC:   If the Court pleases, I appear for the respondent with MS G.A. BASHIR.  (instructed by Legal Aid Commission of New South Wales)

GLEESON CJ:   Yes, Mr Cowdery.

MR COWDERY:   Your Honours, this is an application for special leave from the order of acquit by the Court of Criminal Appeal, in effect, seeking to lead to the position of a retrial of the charge of murder against the respondent.

GLEESON CJ:   What went on in the Court of Criminal Appeal, Mr Cowdery, about that question of what the order ought to be?

MR COWDERY:   By the time consideration of that order had arisen, the course of proceedings, we would submit, had become locked into an artificial construct.  As we have referred to in the submissions, instead of the court both at trial and at appeal addressing the question of joint criminal enterprise on a broader scale, the joint enterprise, we submit, is supported by the circumstantial evidence and the evidence of Mr Cakau.

The focus had narrowed onto the arising of an incidental event, the interception by Senior Constable McEnallay, and the question of whether or not there had been agreement amongst the occupants of the car as to the way in which they would respond to that incidental event.  Now, our submission, as the written submissions demonstrate, is that that was not a proper articulation of the nature of the case.

GLEESON CJ:   But it is suggested against you that that is the way the prosecution put the case.

MR COWDERY:   Certainly by the time it was in the Court of Criminal Appeal, yes.  At the beginning of the trial, no, with respect.  However, under the influence of various remarks made by the trial judge in the course of the trial, the matter did become narrowed in that way, and artificially constructed in that way.  The situation, I accept, your Honours, is one of multiple error.  A misunderstanding and a misconstruction commenced at the beginning of the trial which carried through the trial and then became locked in during the appeal hearing.

So by the time the question of whether or not the order should be for a retrial or for an acquittal arose at the end of the hearing of the appeal, the minds of everybody involved were firmly focused on the issue of an agreement arising at the time of the incidental event, the identification of a foundational offence that was either as argued in the trial for which there was no proper basis, or the alternative that was raised during the course of the appeal.

So there was not an argument mounted at that stage that a retrial would be an appropriate order on the basis of the broader joint criminal enterprise that existed from the time that the four men entered the vehicle.  Your Honour, that may not be a very satisfactory explanation, I accept.  However, that does seem to us to have been the fact.

HEYDON J:   Are you saying there was actually no argument directed specifically at the question of whether there should be an acquittal or a new trial?  The judgment deals with the matter in one sentence.

MR COWDERY:   Yes.

HEYDON J:   But do you know whether there was any specific argument about it, because it is the only point really that your application raises.

MR COWDERY:   Well, my instructions, your Honours, are that there was no proper argument of the nature of the order that should be made at the end of the appeal, that the decision to order an acquittal was something that arose after the court had reserved, and did not receive the benefit of full argument.

GLEESON CJ:   But was the Court of Criminal Appeal alerted to the prospect that if the appeal succeeded, the prosecution would want an opportunity to put a case against the appellant different from the case that was left to the jury?

MR COWDERY:   Not in terms, your Honour, no.

GLEESON CJ:   Which explains why we see no reasoning in the Court of Appeal about the order.

MR COWDERY:   Yes, and as I explained a moment ago, your Honours, that arose because of the artificial and, we would submit, incorrect narrowing of the characterisation of the case, and the fact that the court and both parties had travelled along that track, ignoring the broader factual situation supported by the evidence, which has never changed, that there was evidence of a joint criminal enterprise from the time that the men entered the car, long before the incidental circumstances arose involving Constable McEnallay.

Your Honours, it is an exceptional case, we would submit, both factually and legally, and we accept that a Crown appeal in circumstances of this kind would succeed only in exceptional cases.  It is an exceptional case factually because it involves the crime of murder which is the most serious offence in the State criminal calendar; it involves the murder of a policeman on duty, a public employee in a special situation; it involves criminality of a high level of severity, as evidenced by the sentence that was imposed upon the respondent, and it is a decision that has consequences for the characterisation of joint criminal enterprise cases into the future, if the characterisation which I have described is to be adopted in situations like this.

These kinds of situations are not uncommon, but if the Court is not to have regard to the initial joint criminal enterprise as the foundational offence for the other offences that occur, then the courts will be proceeding on the same long track into the future.

GLEESON CJ:   But you are pushing at an open door there, are you not?  As I understand it, nobody doubts as a matter of law that if the prosecution at trial had set out to make a case of that kind, then as a matter of legal principle if the facts were there they could have succeeded, but the problem is they did not set out to make that case at trial.

MR COWDERY:   The court ignored the effect of that evidence in the way in which the court dealt with the matter, both at trial and then subsequently in the Court of Criminal Appeal.

HEYDON J:   Have you got another exceptional circumstance which is that the reasoning of Justice Adams about the non‑existence, as it were, of the foundational crime in the Court of Criminal Appeal was not a challenge taken by counsel for the defence at the trial?

MR COWDERY:   That is quite so, your Honour.  As I said a moment ago, it was not taken by either party and, indeed, at trial both parties had proceeded along that same, we would submit, misconceived path.

HEYDON J:   If there were a new trial, what the Crown is trying to do is simply take the same evidence and characterise it differently?

MR COWDERY:   Absolutely, your Honour, yes.  The facts and the evidence in support of the facts of the foundational offence have not changed.  They have always been the circumstances that might support the foundational offence and of course, as this particular trial unfolded, the evidence of Mr Cakau as well.  The factual basis supported by the evidence is that there were the phone calls amongst the four men, that they had been together in the car for an hour or so as they travelled across Sydney, the car was reported stolen, there were four stolen firearms in the car with the four men, all of them loaded and all of them obviously accessible very quickly, given the facts that occurred when the car was stopped.  There are an additional 34 bullets in the car, there was a hockey mask and there were two pairs of gloves.

Now, all of those circumstances, in our submission, enable a jury to be satisfied that the joint criminal enterprise was the travelling of these four men for the purpose of committing an offence involving violence, and that would be the way in which the case would be characterised should there be a retrial.  It is the way in which, I submit, the case should have been characterised at the first trial, but for reasons arising from the way in which that trial was conducted and the views expressed by the trial judge, the more narrow and, in my submission, artificial construct was put on the circumstances.

HEYDON J:   The respondent relies heavily on what Justices Gaudron and McHugh said in R v Benz.  You do not put any submission, do you, that what they said is not supported by prior authorities and that the cases which the respondent relies on, like Wilkes’ Case and Anderson’s Case are in fact cases that are very unusual and do not support any general principle of the type that was stated in Benz.

MR COWDERY:   With respect, I adopt that view, your Honour.

HEYDON J:   To put it bluntly, are you prepared (a) to attack Benz in terms, or if not to attack it in terms, (b) to suggest that it needs to be construed ‑ ‑ ‑

MR COWDERY:   Benz, I submit, is restricted to its factual circumstances.  In Benz, both Justices Mason and Dawson would have granted special leave.  Justice Deane did not.  In the joint judgment of Justices McHugh and Gaudron the reason, it appears, why they did not grant special leave is because of the consequences that would then ensue, that is, that on the proper treatment of the evidence that was the subject of the decision, there could not be a conviction in any event.  So the circumstances are distinguishable, in my submission, from the circumstances in this case and some of the more general statements do not apply with the same force to this case.

Your Honours, it is my submission that the Court of Criminal Appeal decision to order an acquittal was based upon a correct finding of error in the way in which the case was legally constructed and, indeed, presented.  However, the error was in the legal formulation, the articulation of the legal basis for the liability of the respondent and, as we have submitted in the written submissions, the basis for that was erroneous and the respondent should not benefit from the continuation of that error.  It cannot be said, in my submission in this case, that there is no reasonable prospect of conviction of the respondent should the case proceed to retrial and should it be characterised and articulated in the way that I have described.

GLEESON CJ:   Would there have been anything to have stopped the prosecution going back to the Court of Appeal after it announced its reasons for judgment but before a formal order was taken out, saying, “We want to apply for a new trial”?

MR COWDERY:   That course could have been taken, your Honour, yes.

HEYDON J:   You have the difficulty that the Court of Criminal Appeal had in effect prejudged the question.

MR COWDERY:   Well, whether it would have been successful or not of course is a different matter altogether, but the court had expressed its view on the very narrow basis and the decision was taken to apply to this Court for correction of that error rather than to seek to have the Court of Criminal Appeal re‑open its case.

GLEESON CJ:   But is it the case that the Court of Appeal never had the opportunity to consider the basis on which you now want to put a new case at a fresh trial?

MR COWDERY:   They have had the opportunity, your Honour, because the evidence was there.  The evidence had not changed.

GLEESON CJ:   But it is an argument it would have had to pick up for itself?

MR COWDERY:   Yes, in the way in which the appeal was run by both sides, yes.  It is an argument that the court would have to have identified from the evidence and from the course of proceedings that it was considering.

GLEESON CJ:   The case really raises an issue about the adversarial system of criminal justice.

MR COWDERY:   It does, your Honour, and it is in this Court’s exercise of ultimate jurisdiction over matters of this kind that we seek special leave.  This Court, we would submit, as indeed any court, has an obligation to ensure that injustice does not occur.  In the result in this case there has been

an injustice, an injustice to the community, an injustice to the victims of the crime and to others associated specifically with the primary victim.

If I were pleading in equity, your Honour, perhaps I could not stand here and say that I come with absolutely completely clean hands because of the way in which the case proceeded through trial and through appeal, but both parties were party to that course and neither court, the trial court nor the appeal court, of their own volition identified the proper legal basis and enabled it to proceed in that way.  Those are my submissions, your Honour.

GLEESON CJ:   Thank you, Mr Cowdery.  Yes, Mr Game.

MR GAME:   Thank you, your Honour.  We have sent up a separate set of some transcript and I wanted to persuade your Honours that this is not such an attractive case for special leave.  The very question that your Honour the Chief Justice has just raised was ventilated by me at page 24 of the transcript in the Court of Criminal Appeal on 28 February 2006.  I apologise there is not pagination, but that is the first lot of transcript.

GLEESON CJ:   Well, there is pagination.  Behind tab 1, is it not?

MR GAME:   Yes, your Honour.  Sorry, I have not got ‑ ‑ ‑

GLEESON CJ:   It is 24 at the bottom.

MR GAME:   Yes, 24 at the bottom and you see in that opening paragraph on that page ‑ ‑ ‑

GLEESON CJ:   “In a sense”.

MR GAME:   “In a sense”, yes.  I will not read it out, but I raise the very problem that your Honour is referring to, and it is canvassed.

HEYDON J:   I do not quite grasp that submission.

MR GAME:   Well, what I am saying is this ‑ ‑ ‑

HEYDON J:   Justice Adams found in your client’s favour in the Court of Criminal Appeal no doubt because of arguments that you put.

MR GAME:   Yes, your Honour, but the point is this.  I raised the spectre that they do not have a case on the way in which they put it at trial or on appeal – sorry, ultimately put it at trial.  But then I raise the problem of what happens if you can conceive of a case – that is what I am saying at line 10.  So I have raised the problem that your Honour the Chief Justice has raised, but then the whole thing dissolves because the prosecutor disavows explicitly in the very first words that he said the possibility of them going back with a different case.

GLEESON CJ:   Where do we see that?

MR GAME:   On the next page, page 25.  It is the first thing he says.  I will be silent for a minute.  It starts at “Accepting the prosecution”, and there is more a little bit later.

HEYDON J:   Well, it all depends what you mean by “a case restructured and different”.

MR GAME:   Yes, your Honour, I understand that, but in the context of this discussion can I just give you one more bit and then I will explain to your Honour.  At 31, line 15:

BENNETT:   Our submission is there should be a new trial presented on the same case –

Your Honours, what happened was this.  The Crown at trial – I will just hand you some statutory provisions that may assist in understanding exactly what happened, and I will do it as quickly as I can.  These are some statutory provisions.  The Crown at trial had put a case on the basis that the common enterprise was a 33B offence, that is to say, something like the case that is currently being put.  A long way through the trial and over strenuous and repeated objections by defence counsel, in fact so repeated that he read out the prosecutor’s opening in his address to the jury, or bits of it, that put the case originally put - the Crown opened on a section 33B joint criminal enterprise or, alternatively, felony/murder.  It put an alternative count which was the wrong count and it abandoned that.

Now, what happened was late in the trial and unconnected with anything to do with firearms – and this is the most important point of it – unconnected with anything do with firearms, the trial judge persuaded the prosecutor to abandon his section 33B case of the joint criminal enterprise, and he persuaded the prosecutor to put a case to the jury that the joint criminal enterprise was evading police.  The judge put to the jury ultimately that there was no contest that that offence was committed and that the appellant was a party to it, and that the only question was did he know of the existence of a gun, and the other part of that was left out, which was foresight of the intention to kill.

Now, when it got to the Court of Criminal Appeal – and, as I say, this was a late entry in the trial, so in a sense the exceptional circumstances that your Honour Justice Heydon has referred to are stripped away because the prosecutor put this case so late in the trial that it ended up being put for the first time in the closing address.

So what happened then on appeal was that the Crown attempted to persuade the court that although the matter had not been properly put there would be sufficient to go back for a foundational crime of section 546C, which is the next offence that I have set out there, that is to say, resisting or hindering.  Their argument was that that was sufficiently similar – what they were really trying to say in the Court of Criminal Appeal, that - although the judge had not put it correctly, what he was really putting was a 546C offence, and therefore they could, shall I say, get away from the problem that there is no offence of evading police.

So that when the Crown makes those two remarks at pages 25 and 31 which are really at the very beginning and very end of his submissions - he makes one final reference to it before he sits down – what he is talking about is he wants to be given an opportunity to go back and conduct a case under section 546C with that as the joint criminal enterprise; again, unconnected with anything to do with firearms.

Now, the progress of the case from - and the reason, if one was cynical about it, for the change was that the Crown perceived a problem of some joint criminal enterprise relating to the, shall I say, joint position of firearms with some criminal intent.  So they swept that aside and they specifically and explicitly dropped that case.  Now, where the case has gone from there is that two special leave questions are identified which have really absolutely nothing to do with how this case was put ‑ ‑ ‑

HEYDON J:   I have some sympathy with that argument.

MR GAME:   Then they say the joint criminal enterprise is a joint criminal enterprise to do an armed robbery based on Mr Cakau, and then we say, “But hang on, that was specifically disavowed at trial and on appeal”.  Then they say, “Oh well, it’s some joint criminal enterprise relating to something to do with possession of firearms”, which is a fifth version of their case.  Now, what was the Court of Criminal Appeal to do?  The other thing is, they have not even raised as a special leave point the Crampton and Gipp type new case point.

HEYDON J:   Well, it is pregnant within ground 4 perhaps.

MR GAME:   I thought there were only three grounds, but maybe I stopped reading, your Honour.

HEYDON J:   Maybe you are right.  Ground 2.4.

MR GAME:   Sorry, which page is that?

HEYDON J:   Page 139.  There are stated in effect to be four grounds, and that is the fourth.

MR GAME:   Well, it is, your Honour.  I am sorry, I took that as a formal ‑ ‑ ‑

HEYDON J:   Rolled up.

MR GAME:   ‑ ‑ ‑ rolled up of the previous ones.  Not only that, but the Court of Criminal Appeal and counsel – sorry, counsel on appeal said, “This is an unusual case.  It’s not like a case where people go to commit an armed robbery”.  That is what he said to the court.  So what is the court supposed to do, say, “Oh no, you’re wrong, Mr Prosecutor, this is like that sort of case”.  So it is not just conduct of trial counsel; it is conduct of appeal counsel, and then appeal counsel effectively leave the court with no alternative but to enter an acquittal because nobody is suggesting that the case that they put to the Court of Criminal Appeal could be put at a trial, so they go back to, shall I say, a more sophisticated version of the first attempt.  So that is where one stands with this case.  Not only did trial counsel abandon the robbery thing - appeal counsel for the Crown – so did the court specifically dealt with it at paragraph 22.

GLEESON CJ:   Excuse me, say that again.

MR GAME:   The Court of Criminal Appeal specifically dealt with the “unlike an armed robbery” type of case at paragraph 22, I am just being reminded.

GLEESON CJ:   What page?

MR GAME:   Page 126, your Honour.  That is at the specific invitation of the Crown to that take that approach.  So shall I say in the line of cases, Crampton, Gipp and I would perhaps throw in Eastman to that, one is throwing obligations on Courts of Criminal Appeal to do things that really would be way beyond their appropriate function, which is to sit around dreaming up cases that the prosecution should put but did not put, and specifically disavows on appeal.  It is important to understand that the Crown is not suggesting that the case they put to the Court of Criminal Appeal is a case that could be put on a retrial.  So those are my submissions, if the Court pleases.

GLEESON CJ:   Thank you, Mr Game.  Yes, Mr Cowdery.  Mr Cowdery, that paragraph 22 on page 126, is it the case that the foundational crime that

you would want to rely on at a new trial is an offence under section 33B of the Crimes Act?

MR COWDERY:   Not specifically, not confined to an offence under that section, but an offence committed in company involving violence.

GLEESON CJ:   What offence, apart from an offence under section 33B, would you be relying on?

MR COWDERY:   Well, there may be other offences that could be encompassed within that description but, in our submission, it is not necessary to identify a specific offence.  May I just qualify that?  With the evidence of Mr Cakau it would be an alternative way at least of characterising the foundational offence.  It would be one of perhaps a range of offences that could form a foundational offence.  Apart from that, your Honours, I have nothing further.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 10.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.32 AM:

GLEESON CJ:   The prosecution arose out of a fatal shooting of a police officer who pursued a car being driven by the respondent.  The man who shot the police officer was convicted of murder and is serving a lengthy prison sentence.  The case against the respondent was based on his liability as a party to a joint criminal enterprise.  It was the nature of the alleged enterprise relating to the fatal shooting that was the central issue in the appeal in the Court of Appeal.

The applicant accepts that the Court of Criminal Appeal was right to uphold the appeal to that court and quash the conviction.  The purpose of the proposed Crown appeal to this Court is to obtain an order for new trial.  The basis on which the prosecutor seeks that new trial is different from the way that the prosecution case was ultimately put at trial and before the Court of Appeal.  The application as brought raises important issues concerning the adversarial system of the administration of criminal justice and the circumstances in which this Court might grant or refuse special leave to appeal where the object of the appeal would be to obtain a new trial.

In those circumstances, this application will be referred to a Full Court of this Court for argument.  What will be listed will be the application for special leave to appeal, but the parties should be ready to argue the matter on the basis of a full investigation of the merits of the issues that would arise in an appeal.  So the application for special leave to appeal is adjourned to a Full Court.

MR GAME:   Can I just mention one matter, your Honour?  It may be that in our submissions we might want to argue that if there were a retrial it might be on something less than murder, so I would just forecast that we might put submissions that there may be another course that we would follow.

GLEESON CJ:   Very well, thank you, Mr Game.  I would expect that this application will probably be listed for hearing in December.

MR COWDERY:   If the Court please.

GLEESON CJ:   We will adjourn for a short time to reconstitute.

AT 10.35 AM THE MATTER WAS CONCLUDED