Reg v El-Zarw

[1992] HCATrans 181

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No BS of 1992

B e t w e e n -

THE QUEEN

Applicant

and

ATEF FATHALLA NOUH YOUSSEF

EL-ZARW

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J
TOOHEY J
GAUDRON J

El-Zarw 1 23/6/92

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 23 JUNE 1992, AT 3.01 PM

Copyright in the High Court of Australia

MR R.N. MILLER, QC:  May it please the Court, I appear with

my learned friend, MR D.L. BULLOCK, for the

applicant. (instructed by D. Field, Solicitor to

the Director of Public Prosecutions (Queensland))

MR S.E. HERBERT:  May it please the Court, I appear with my

learned friend, MISS J.M. DICK, for the respondent.

(instructed by J.A. Hodgins, Director, Legal Aid

Office (Queensland))

BRENNAN J:	Mr Miller.
MR MILLER:	I hand up to the Court copies of my outline of submissions.

BRENNAN J: Yes, Mr Miller.

MR MILLER:	May it please the Court, if I might just begin with a short chronology of events that led up to
this matter.  The respondent was presented for
trial in the Supreme Court at Brisbane in October
of 1989 on the charge of murdering his wife. The offence was alleged to have been committed in October of 1988. Twenty six witnesses all told
were called by the Crown in this case, including
two - one was Detective Sergeant Frohmuller and the
other Paul Anthony Shaw.

After the Crown case closed, the respondent

gave evidence himself and called two witnesses who

were fellow inmates of Brisbane Prison and they

were Warren Charles Jamieson and Mark Donald

Cougan. The evidence given by Jamieson and Cougan

contradicted evidence given by Shaw and went a long

way to discrediting the evidence of Frohmuller in

certain respects.

The jury acquitted the respondent of murder and of manslaughter.	Now, following the acquittal
of the respondent, both Jamieson and Cougan

confessed to conspiring with the respondent to

pervert the course of justice at the murder trial

and both pleaded guilty to the offence of

conspiring and each was sentenced for that offence.

On 15 June 1990, both gave evidence at

committal proceedings against the respondent on two

charges: one, that he had conspired with Jamieson

and Cougan to pervert the course of justice; and

two, that he had falsely sworn, on the murder

trial, that he had never confessed to Shaw that he

had murdered Tracey Anne Smith. I might just

mention that Tracey Anne Smith and the accused

were, at one time, married, although the evidence

indicated the accused was still married to another

lady, and that is why she was called Tracey Anne

El-Zarw 2 23/6/92

Smith in the indictment. He was committed for

trial on both of those charges.

Now, the indictment upon which he was sent for

trial in April of 1991 contained four counts: they

were that he, Jamieson and Cougan had conspired

together to pervert the course of justice upon the

prosecution of himself on the charge of murder;

two, that he had falsely given evidence upon that

trial that he did not know and had never spoken to

Shaw; three, that he had falsely given evidence

upon that trial that he had never hit anyone; and

four, that he had falsely sworn upon that trial

that he had not killed Tracey Anne Smith.

Now, before the April 1991 trial proper began,

the defence, in an endeavour to have Jamieson's

evidence excluded by the trial judge in the

exercise of his discretion, called both Jamieson

and Cougan. The evidence of Jamieson was not

excluded and the trial proceeded. Jamieson was

called, of course, in the Crown case, and it called

as well the evidence which it had called at the

first trial, the murder trial and some other

evidence as well. the accused gave evidence in his

own defence, but he did not call Cougan; in fact

Cougan was called by neither side, he having given

evidence on the voir dire before the trial proper

began and he had indicated to the Crown already

that he was not prepared to give evidence in favour

of the Crown, notwithstanding his plea of guilty

and his having been sentenced for the offence of

conspiring to pervert the course of justice.

In the end, the jury acquitted on count one,

convicted on counts two, three and four. We

contend that the trial on the perjury count, which

is count four, was regular in all respects. The

Court of Criminal Appeal quashed the convictions on

the three perjury counts, entered verdicts of

acquittal on counts three and four, but ordered a

re-trial on count two. It is in respect of the

order quashing the verdict on the third perjury

charge and entering a verdict of acquittal on it,

that the Crown now seeks special leave to appeal to

this Court.

BRENNAN J:	The third or fourth count?
MR MILLER:	The fourth count in the indictment was the third

perjury count.

BRENNAN J:	I see, yes.
MR MILLER:	We acknowledge that this Court will grant leave

to the Crown to appeal only in very exceptional

circumstances and the authorities are Benz, Glennon

El-Zarw 3 23/6/92

and a decision of this Court within the last few

weeks of Rogerson. We acknowledge that it is

necessary for us to show a very strong case of

public importance concerning the administration of

justice. We suggest to this Court that there

should be special leave granted for these reasons: there is a need to examine the scope of the powers

of the Court of Criminal Appeal to quash a verdict
of a jury on the charge of perjury where it has not

been held by the Court of Criminal Appeal there was
any abuse of process or that the evidence upon

which the verdict was founded was inadmissible or that the evidence was not sufficient to prove the

charge beyond reasonable doubt. In holding that

the verdict was unsafe and unsatisfactory, the
court simply held that it was of this description

because the jury had relied on substantially the

same evidence that the earlier jury had heard when

it had rendered the verdict of not guilty on the

charge of murder and manslaughter.

BRENNAN J:  How does the record now stand? He has been

acquitted of murder and convicted of perjury in

relation to the killing?

MR MILLER: That is so, yes.

BRENNAN J: Is there any inconsistency between those two?

MR MILLER:  Yes there is.

BRENNAN J: Well, if there is an inconsistency, how can the

record stand?

MR MILLER: Because, in our submission, where the charge is

perjury, there is an exception to the rule that a

man is entitled to the benefit of his former

acquittal, where the Crown has - let me put it this

way.

McHUGH J: Where the Crown relies on additional evidence.
MR MILLER:	On additional evidence, which was not available

at the earlier trial. Now, we say here that the

case that we put before the jury on the perjury

charge - I will refer to it as a perjury charge for

brevity's sake - was additional evidence; we

brought additional evidence, Mr Jamieson had

changed sides, as it were. We were fully justified

in bringing the charge of perjury against him - - -

McHUGH J:  Can I just interrupt you to say that it

would seem to me that paragraph 4 was really your

special leave point rather than paragraph 1, namely

that if the case was not an abuse of process when

it began, on what theory can the verdict be set

aside?

El-Zarw 4 23/6/92

MR MILLER: Yes, that is the crux of my submission to this

Court. If there is an abuse of process, that is

judged at the beginning of the trial.

BRENNAN J: Well, that is Humphry's case, is it?

MR MILLER:  That is Humphry's case. The indictment is

quashed or there is a stay of proceedings; it

cannot go any further. In this case the Court of

Criminal Appeal did not say that the Crown was not

fully justified in bringing the prosecution. It is

nowhere said in any of the judgments that there was

an abuse of process. Once there is an absence of

abuse of process, the Crown is entitled as a right,

in my submission, to bring the charge.

TOOHEY J:  One of the difficulties is that the grounds of

appeal are manifold, but they seem to have - either

as a result of the course the matter took at the

hearing of the appeal or by virtue of the way in

which the court approached its judgments, it has

finessed into a question of unsafe and

unsatisfactory verdicts. Is that the way in which

the matter was finally aired before the Court of

Criminal Appeal?

MR MILLER:  Your Honour, I am subject to correction. I

appeared in the Court of Criminal Appeal and my

learned friend Mr Herbert appeared as well. I

thought his primary argument before the Court of killing, as it were, was not admissible on the

trial. Now, the court does not hold that the

evidence was not admissible - I am talking about

the evidence that was previously heard at the

murder trial.

GAUDRON J: Is not the difficulty in this case really

relating to the form of the indictment that was

presented at what I will call the perjury trial?

You charged conspiracy and perjury and in one sense	the sensible course would have been to sever the	first count from the second, because the evidence
related to both and it was only once you had had a
trial on the first count, or you had severed it,
that you could see whether or not there was going
to be any abuse of process. Indeed, I would have
thought that putting all the counts together was
really verging on oppressive, and I think that
point was taken at trial, was it not?

MR MILLER: 

It certainly was not a point that was made the

subject of any ruling, as it were, by the Court of
Criminal Appeal.

GAUDRON J: 

No, well, that is because of the way things have developed, I suppose.

El-Zarw 

23/6/92

MR MILLER: There were a number of grounds of appeal, but

there was only one really argued, but the one

argued, as I understand it, was not the ground upon

which the court founded its decision. It really

founded its -

BRENNAN J:  Mr Miller, you have to establish special leave

grounds in this case. What is your special leave

ground, because if it is a question of: the view

that the court below took was unsafe and

unsatisfactory, I should have thought you had the

job well ahead of you.	Have you got anything of
more substance than that?

MR MILLER:  Yes, we have, Your Honour. We say that the

verdict of the jury should be allowed to stand,

because there was no abuse of process.

DEANE J: But once you failed on the conspiracy the question

for the jury was, was the accused guilty of murder,

because there was no dispute about what his

evidence was, which means, once you put aside the

conspiracy you have, in effect, re-tried this man

for the murder that he was acquitted of.

MR MILLER:  We suggest not, Your Honour, with the greatest

respect.

DEANE J:  But how could it be otherwise? I mean, you had

your conspiracy count which you say took it out of

a straight re-trial, but you lost that and that

evidence, the Court of Criminal Appeal has said,

was rejected by the jury.

MR MILLER: Yes.

DEANE J: Well now, we proceed on the basis they rejected

that additional evidence, so all that is involved

is, the man having been acquitted of murder on

evidence which is readily identified, you say he

gave that evidence and was really guilty of murder,

and you point to a bit of additional evidence that

the jury rejected.

MR MILLER: Yes, but we say there is a distinction to be

drawn between a man murdering someone and his going

into a witness box and swearing that he did not.

DEANE J:  But put aside the bit of additional evidence which

the jury rejected. On your approach, it is open to

the Crown whenever a man is acquitted to come again

and say, "He gave that evidence and he was really

guilty".

MR MILLER:  If we have got additional evidence.

El-Zarw 6 23/6/92

DEANE J: But you keep going round. You see, I have said,

put aside the additional evidence which the
procedure you saw fit to follow has

demonstrated was rejected. Why should we say we

will grant special leave to appeal because, even

though this additional evidence was rejected, it

opens up a technical basis on which the Crown can

say, "Well, even though we are not entitled to do

what we have done, this bit of evidence which the

jury rejected puts us into a new ball game".

MR MILLER: Well, I can understand the force of

Your Honour's argument, but we are put in a better

position - - -

DEANE J: Well, it was not an argument, it was a question.

It might have sounded like an argument.

MR MILLER:  Yes. Certainly the Crown was put in a better

position because of the availability now of

Jamieson as a witness for the Crown. Without his evidence it would have been oppressive to bring a

prosecution against the accused for perjury; I

accept that.

McHUGH J:  The mistake you made was to indict the accused

for conspiracy. If you had not indicted him for
conspiracy the verdict would have stood, nobody

could have challenged it.

MR MILLER: Yes, that is true, Your Honour, but we do not

resile from the fact that it was proper to bring

that charge.

MCHUGH J: Yes.

MR MILLER:  It was proper to bring that charge and to have a

jury's verdict on it.

BRENNAN J:  It may have been proper and you have got the

jury's verdict on it - - -

MR MILLER: Against us.

BRENNAN J:	- - - and you live with that.
MR MILLER:	We do.
BRENNAN J:	The question is, living with that, does it have

the consequence which was pointed out to you in the

question asked by Justice Deane?

MR MILLER:  No, for the reason that we contend that once the

prosecution has been brought in good faith, that is

where there has been no abuse of process, there is

no principle of law which deprives the Crown of the

El-Zarw 7 23/6/92

right of a verdict on the evidence which the jury

does accept. It is as simple as that.

BRENNAN J:  The hypothesis on which you must approach the

case is that the evidence which you had that might

have had you launched on this course was evidence

which was not to be acted on by the jury. Now,

must you not therefore postulate the question in a

different way? If the Crown has additional

evidence, being evidence which a jury is not
prepared to act upon, can it then launch a

prosecution?

MR MILLER: It does not know in advance.

BRENNAN J:  Of course it does not know in advance, but that

does not answer the question of whether we should

grant special leave in these circumstances on the hypothesis that the jury might have, because what happens if the appeal succeeds? The case then goes

on the footing of the confirming of a verdict of

guilty on the same evidence as the accused was

acquitted of the murder on, and that means you have

got, on the same evidence, inconsistent verdicts.

MR MILLER: Well, the question I would oppose is this, upon

what basis?

McHUGH J: Well, can I just put this basis to you?

Supposing the accused was not charged with

conspiracy at all, but just with the simple count

of perjury in relation to the murder charge, and

the jury had been asked to bring in a special

verdict: "Question one, do you accept the evidence

of Jamieson? No." Could the verdict stand in

those circumstances?

MR MILLER:  I would contend yes, because the prosecution was

not an abuse of process.

McHUGH J: But as a matter of law it could not stand, could

it, because the jury would be acting only on the

other evidence, which is the same evidence that the

previous jury had rejected on the charge of murder.

MR MILLER:  I would accept what Your Honour says if in fact

then the double jeopardy rule is applicable, but we

suggest that it is not applicable where there has

been a prosecution brought in good faith.	It is as
simple as that.

McHUGH J: That is the beginning and end of it, that is the

point.

MR MILLER:	It is the beginning and end of it, yes.
El-Zarw	23/6/92

BRENNAN J: Yes, well, really there are two questions: one

is, can the prosecution be brought if there is

additional evidence; and the second is, if the

Crown believes it has additional reliable evidence

and institutes the proceedings in good faith, then

is that sufficient?

MR MILLER:	Yes.
BRENNAN J:	The question is whether we should grant special

leave to consider the first question, because that

really is the basic question, is it not - - -

MR MILLER: It is.

BRENNAN J:  - - - and whether this is a suitable vehicle to

do so.

MR MILLER:  And I do not know that I can say anything

further than what I have already said to

Your Honours.

BRENNAN J:  Yes. The Court will adjourn briefly in order

to consider the course it should take.

AT 3.21 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.30 PM:

BRENNAN J:  We need not trouble you, Mr Herbert.

MR HERBERT: If Your Honours please.

BRENNAN J:  In view of the jury's verdict of not guilty on

the count of conspiracy, the case is not a suitable

vehicle for considering whether, when the Crown has

additional evidence, it is open to a jury to

convict an accused of perjury in respect of his

denial on oath of his involvement in an offence of

which he has been acquitted. In those

circumstances, special leave will be refused.

AT 3.31 PM THE MATTER WAS ADJOURNED SINE DIE

El-Zarw 9 23/6/92