Rousetty v The Queen

[2006] HCATrans 146

[2006] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B85 of 2005

B e t w e e n -

MICHAEL ANTHONY ROUSETTY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2006, AT 3.46 PM

Copyright in the High Court of Australia

MR P.J. DAVIS, SC:   Your Honour, I appear on behalf of the applicant.  (instructed by Ryan and Bosscher)

MR M.J. COPLEY:   May it please the Court, I appear on behalf of the respondent.  (instructed by Director of Public Prosecutions (Queensland))

KIRBY J:   Yes, Mr Davis.

MR DAVIS:   Your Honour, there is no doubt that in 1995 a man called Tyler was murdered and his body was disposed of in some bushland in a mountain range near Cairns.  It was also non-contentious that my client was involved in the disposal of the body.  My client was charged with the murder.  He was convicted after a trial, and then that conviction was overturned by the Court of Appeal, and then the matter returned to the Supreme Court sitting in Cairns for retrial.  A second indictment was presented, and that can be found at page 3 of the ‑ ‑ ‑

KIRBY J:   Now, just let us pause at that moment because you have two procedural requirements.  First, you are seeking an extension of time.  That is in paragraph 3.21.  Is that opposed?  Do you know if it is opposed?

MR DAVIS:   I do not know whether it is opposed, your Honour.

MR COPLEY:   Your Honours, it is opposed.

KIRBY J:   Yes, all right.  We will note that.  Secondly, you are seeking to read an affidavit from counsel.  Do you read that affidavit?

MR DAVIS:   Yes, I do, your Honour.  That is the affidavit of Mr Russo ‑ ‑ ‑

KIRBY J:   Is there any objection to the reading of the affidavit of Peter Samuel Russo?

MR COPLEY:   No, your Honour.

KIRBY J:   Very well.  The Court reads the affidavit of Peter Samuel Russo.

MR DAVIS:   Thank you, your Honour.  Your Honour, can I continue, perhaps, with the explanation of the way this matter proceeded before dealing with the application for extension of time?

KIRBY J:   Yes, deal with the substance.

MR DAVIS:   Thank you, your Honour.  When the matter went back for retrial in the Supreme Court at Cairns a second indictment was presented, and that appears at application book page 3.  The Court will see that there are two counts on that indictment and they are inconsistent with each other and they are therefore expressly charged in the alternative.  Count 1 charge is murder.  Count 2 charges that my client was an accessory after the fact to ‑ ‑ ‑

KIRBY J:   Yes, we know that and we know that on the second trial, I assume after the jury came back unable to reach a verdict on murder, the judge dealt with the matter on the basis of your plea and convicted your client of the second count.  Is that correct?

MR DAVIS:   No, your Honour.  What occurred was he was arraigned at the beginning of the second trial.  He pleaded not guilty to the murder.  He pleaded guilty to the second count, the alternate count.  At that point in time the allocutus was administered to him and the matter was then adjourned –the question of sentence was adjourned.

KIRBY J:   Was he ever formally convicted on the second count?

MR DAVIS:   In my submission, he was formally convicted by the administration of the allocutus and the adjournment of the sentence.

KIRBY J:   Was that a point that you took at the opening of the third trial, to say that your client had been convicted?

MR DAVIS:   No, your Honour.

KIRBY J:   So that this is not a point that you have raised either at the third trial, as it would be, or in the Court of Appeal?

MR DAVIS:   That is so.

KIRBY J:   You would be raising it for the first time in the High Court.

MR DAVIS:   That is so.  Now, that, of course, is relevant, I accept, to the application for extension of time as well, but ‑ ‑ ‑

KIRBY J:   It is not necessarily fatal, as we said in Gipp.  Whilst the matter is alive within judicature, points that arise can be presented to this Court.  But you do have to overcome the procedural barrier and that takes us to questions of substantive justice and miscarriage and whether the point that you are raising is purely a technical point or is a point that has some substantive justice to it.

MR DAVIS:   Your Honour, that may turn on this issue, that if upon the administration of the allocutus my client was convicted in such a way that there was no jurisdiction left to the Supreme Court upon the application of the Crown to set aside the conviction, then, in my submission, it is a substantive point because as and from that point my client had a very good case to plead a stay and would  on the authority of cases such as Carroll inevitably have won an application for a stay at that point because ‑ ‑ ‑

KIRBY J:   Query that because he had not been formally convicted of the second count and the formal process of conviction, the entering of the conviction and the determination of the sentence had not followed through.  The matter was simply put on the side and then proceeded to the third trial.  You are really raising a technical point, that by reason of the procedures, notwithstanding the informality of the way those procedures went, that as a consequence of the procedures your client was effectively convicted and fell for sentence on the second count.

MR DAVIS:   The comments that your Honour has made really directly raises the point on the application and that is as to the effect of the administration of the allocutus, so that ‑ ‑ ‑

KIRBY J:   I realise that and that is why I raise it because, normally, this Court does not get involved in matters of practice and procedure, period.  That is normally the rule.  Secondly, when we do get involved we are particularly cautious in getting involved, unless we are from Code States, in the mysteries of Code procedure, because that is something that is known in Queensland and Western Australia and to some extent in Tasmania and the Northern Territory, but it is not universally known.  So we have respect for the approach of the State judges, and obviously the trial judge in the second trial did not think he was convicting your client of the second count.

MR DAVIS:   That may have been so but there was no argument about that, so whether or not his Honour actually turned his mind to that is another thing and, with the greatest respect, it is probably the case that his Honour did not turn his mind to that.  The real issue, in my submission, is whether in a State where the administration of the allocutus is legislatively ordained the question then is whether or not a person is convicted upon administration of the allocutus or whether the person is not convicted until the conviction is drawn up and there is a sentence. 

Now, in my submission, if it is the latter, then this application has no merit, but if it is the former then my submission is that he was formally convicted upon the administration of the allocutus and as and from that point he, for all intents and purposes, had a substantive defence to count 1 because he was convicted properly of the alternate count and count 1 was then inconsistent with that and, absent any jurisdiction of the court on the application of the Crown to set aside conviction on count 2, he could not be tried in relation to count 1.  So the question then becomes, in my submission, as to the effect of the administration of the allocutus.  It has been held in Queensland in both Shillingsworth and Collins that conviction occurs upon the administration of the allocutus.

KIRBY J:   That surely would be in circumstances different from this case where the jury were unable to reach a verdict on the murder count and therefore no jury verdict was taken on the second count.

MR DAVIS:   In both Collins and Shillingsworth the convictions occurred by virtue of pleas of guilty, so the question of ‑ ‑ ‑

KIRBY J:   But the plea of guilty was offered at the opening of the trial, where there were the alternative counts.  What does Mr Russo say was his understanding of what occurred?  What is the relevance of Mr Russo’s affidavit?

MR DAVIS:   Mr Russo comes into the matter much later and he really just explains some of the proceedings and then talks in terms of explaining the delay in making the application to this Court.  There is no real explanation as to why the judge in the second trial, on the second indictment, called upon my client administrating the allocutus.  So, in my submission, there is no doubt that upon offer of a plea to count 2 my client, by his action in offering the plea, has not been convicted of anything.  There is no doubt about that.  However, once there is a step taken by the court to accept the plea, then, in my submission, he is convicted of it. 

What normally occurs in Queensland is if there are alternative verdicts open on the indictment, for instance, if a person is charged with murder – and, of course, manslaughter is open – an accused person at the beginning of the trial may say, “I am guilty of manslaughter”.  What normally occurs then is the Crown are invited to indicate whether or not the plea to the lesser count of manslaughter is accepted in full and final satisfaction of the indictment. 

Now, if the Crown says yes, what happens then is that the allocutus is administered and the accused person is then convicted of the lesser charge of manslaughter.  On the other hand, if the Crown says no, then the trial proceeds on the murder.  Both murder and manslaughter are then left to the jury and, of course, the trial judge points out to the jury that in relation to the alternate count of manslaughter they have the admission from the dock by way of the plea of guilty to that lesser count. 

Now, in my submission, what has occurred here is that the judge has simply administered the allocutus.  He does not seem to have called on the Crown in a formal sense.  All that his Honours said was something along the lines of, “What will I do about sentence?  I shall adjourn that until after the trial.  Everybody seems to have acquiesced in that”, and then he has called upon the accused, the present applicant.  In my submission, what that does is that then operates as an action of the Court to accept the plea and convict Mr Rousetty of count 2.

CRENNAN J:   What about the fact that the Crown has never accepted the plea in discharge of the indictment?  How does it work in relation to that?  In fact, a step has been missed, has it not, in the administration of the allocutus? 

MR DAVIS:   No, there is ‑ ‑ ‑

CRENNAN J:   A step that would normally be taken beforehand?

MR DAVIS:   There is no legislative requirement of the court to seek the consent of the Crown to the administration of the allocutus on the alternate count.  As a matter of practice that just happens, but it did not happen here.  Incidentally, the Crown Prosecutor did not seek to stop the administration of the allocutus either.  It just simply happened. 

That, your Honour, distinguishes the case somewhat from the decision of this Court in Maxwell because in Maxwell there was a specific provision in the relevant legislation which said that the accused could only enter a plea, in effect, to the alternate count with the consent of the Crown.  So in New South Wales there was an extra step.  The accused person could not enter a plea without the consent of the Crown, so that there was a positive right in the Crown to not consent, but that is not the case here, although I should take the Court to section 598(2)(a) of the Code.  Now, section 598(2)(a) deals with pleas once a person is arraigned.  Section 598(2) says:

If the accused person pleads, the person may plead either –

(a)that the person is guilty of the offence charged in the indictment, or, with the consent of the Crown, of any other offence of which the person might be convicted upon the indictment;

At first look that might be thought to catch an alternative count like count 2 but, in my submission, it does not.  What that subsection is concerning, when it comes to a charge of murder, is in fact the alternate charge of manslaughter because that is in fact open by section 576 of the Code upon that charge.  Section 576 says:

(1)Upon an indictment against a person containing a count of the crime of murder, the person may be convicted on that count of the crime of manslaughter if that crime is established by the evidence but not on that count of any other offence than that with which the person is charged except as otherwise expressly provided.

There is no other express provision.  So there is no need, your Honour, for there to be any consultation with the Crown before the allocutus is administered.  As a matter of practice there is, but, in my submission, what has occurred here is that the allocutus has been administered, my client has been convicted of count 2.  As that count is inconsistent with count 1, he should never have been retried on count 1.  They are my submissions, your Honour.

KIRBY J:   Thank you.  Mr Copley, what is the objection to the filing of the application out of time?

MR COPLEY:   The objection is made for three reasons:  first of all, that the application was made nearly three years late; secondly, that the delay is not satisfactorily explained; and thirdly, that the application itself is unmeritorious.

KIRBY J:   The third matter is the matter of the substance but the first two matters I think are reasonably explained by the fact that this is a point of law that has been conceived of belatedly.  It did not occur to those who were looking at the matter earlier ‑ ‑ ‑

MR COPLEY:   No.

KIRBY J:   ‑ ‑ ‑ and therefore one would normally want to deal with the substance of the matter rather than deal with the technical fact that the matter is out of time, the accused being in prison during the interval.  So I think you had better address the matters of substance.

MR COPLEY:   Yes, your Honour.

KIRBY J:   One matter that does concern me a little is that although it might be inferred that the judge of the third trial and perhaps the judge of the second trial have acted on the hypothesis that you are presenting to us, it has not actually been specifically addressed in the Court of Appeal because it was not raised on the appeal to that court.

MR COPLEY:   No.  There was no point taken at all and it was only at the end of the appeal when they noted the convictions for what seemed to be inconsistent offences or sentences for inconsistent offences that they set aside at the applicant’s request the conviction and sentence for the accessory and ‑ ‑ ‑

KIRBY J:   So we have to, as it were, draw an inference from what happened at the end of the second trial, namely, effectively nothing, and what happened in the third trial where a judge of experience proceeded to the trial of murder; we have to draw an inference from that that they saw no problem in the course of events of the second trial.

MR COPLEY:   Yes.  Can I proceed to explain my argument on the merits to your Honours?

KIRBY J:   Yes.

MR COPLEY:   If we go to section 598 of the Code, subsection (2) says that the applicant might plead that he is either guilty of murder, which is the offence charged in the indictment, “or, with the consent of the Crown, of any other offence of which the person might be convicted upon the indictment”.  Now, on this particular indictment the other offences of which he might be convicted were either manslaughter or, alternatively, accessory after the fact.

KIRBY J:   Yes, but it is put against you that (a) is only limited to the murder/manslaughter possibility.

MR COPLEY:   Yes, that is the contention, but that is, in my submission, an erroneous interpretation of the section.  The ordinary words of the section are broad enough to encompass ‑ ‑ ‑

KIRBY J:   Has that been interpreted by the courts of Queensland in the manner in which you are suggesting?

MR COPLEY:   No, but there is no decision to suggest that the contention I am advancing is erroneous either.

KIRBY J:   Let us just look at the words:  “or, with the consent of the Crown, of any other offence of which the person might be convicted upon the indictment”.  You say, in this case, another offence on the indictment was accessory after the fact and that is an offence of which the applicant might be convicted and therefore that he needs the consent of the Crown to be convicted and sentenced of that offence.

MR COPLEY:   Yes.  In this case, he demonstrably did not have the consent of the Crown to plead guilty to accessory after the fact in discharge of the murder.  Whilst the Crown Prosecutor ‑ ‑ ‑

KIRBY J:   Slightly disturbing of that proposition is what appears to have been the assumption of the judge at the second trial that he should stand the matter over for sentence on the second count of the indictment.

MR COPLEY:   Yes, that was an assumption but that assumption cannot be elevated into an unequivocal adoption by the judge at the second trial or acceptance of the plea of guilty.  There is no conviction, in my submission, until the court unequivocally accepts the plea of guilty and an adjournment of a sentence is not an unequivocal acceptance of a plea of guilty anymore than is the administration of what we call the allocutus in section 648.  When the applicant pleaded guilty to the accessory, he, the Crown, and the second trial judge were all under the same understanding, namely that that plea was not accepted by the Crown and that there had to be a trial for murder.  Hence, the Crown Prosecutor outlined the witnesses he was going to call and everybody sat through a lengthy murder trial.

The administration of the allocutus is being sought to be elevated to a point that it does not go.  The point made against the respondent is, once the allocutus is administered there is therefore a conviction and nothing further can occur except a sentence, but, in my submission, that is not so.  Notwithstanding the administration of the allocutus, under section 649 of the Code there can be made a motion to arrest judgment.  Notwithstanding the administration of the allocutus, there can and often is application subsequent to its administration to set aside pleas of guilty prior to sentence.  Notwithstanding the administration of the allocutus, it not infrequently arises that there are then submissions made on sentence by an offender’s counsel which submissions are sometimes inconsistent with the terms of the plea.  So, the judge then has to decide whether he will allow the plea to stand or to be set aside, and there is no impediment to setting it aside if the allocutus is administered.

KIRBY J:   I hope you will not take this amiss, Mr Copley, but we have heard enough of you.

MR COPLEY:   Thank you, your Honour.

KIRBY J:   Yes, Mr Davis.

MR DAVIS:   Your Honour, if section 598(2) is read in the way that my learned friend contends, it leads to an extraordinary result where an accused person cannot plea to a count expressed on the face of the indictment and, in my submission, the better construction is to read the section with section 576 such that what is meant is counts open on the indictment but not expressly charged thereon.

KIRBY J:   Yes, you put that proposition.

MR DAVIS:   Yes.  Your Honour, I have nothing further in reply.

KIRBY J:   The applicant has twice been convicted of murder by a jury.  The first conviction was set aside on appeal by the Court of Appeal of Queensland.  The first retrial was complicated by its procedural history.  A second jury was discharged without returning a verdict on the count of murder.  However, the applicant claims that the effect of the procedures followed at the second trial was that he was, in law, convicted of the alternative second count of the indictment of being an accessory after the fact of murder to which count he had pleaded guilty.  This, he states, rendered any further prosecution of him for murder an abuse of process by the Crown.

However, when a third indictment for murder was presented (again, at first with the alternative count later withdrawn) the applicant was again found guilty of murder by the jury.  He was convicted of that offence and sentenced to life imprisonment.  An appeal contending that the second conviction of murder was unsafe was unanimously dismissed by the Court of Appeal of Queensland.  The correctness of that conclusion is not a matter that is now before us.

Instead, the applicant now seeks, for the first time, to challenge his second conviction of murder by reference to what he says is the earlier conviction, in law, on his plea as an accessory after the fact.  He says that that ‘conviction’, as he claims, is inconsistent with his later prosecution for, and conviction of, murder.

In our view, the point does not succeed.  It was not argued at any stage in the third trial or in the Court of Appeal below.  It involves a question of procedure under the Criminal Code (Qld) which is one that would ordinarily be decided by judges of the Supreme Court of Queensland. The point now sought to be raised is purely one of a technical character. It is not concerned with the factual merits of the applicant’s second conviction of murder. There have now been three trials of the applicant. We are not convinced that any substantive miscarriage of justice has occurred. Nor do we believe that there are reasonable prospects of success on the legal point that the applicant wishes to argue, particularly having regard to the terms of section 598(2)(a) of the Code.

The extension of time required by the applicant for the bringing of the application is granted.  However, special leave to appeal is refused.

Adjourn the Court now to 10.15 am on Tuesday, 21 March 2006 in Hobart.

AT 4.15 PM THE MATTER WAS CONCLUDED