RR v The Queen

[2013] HCATrans 272

[2013] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M85 of 2013

B e t w e e n -

RR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 NOVEMBER 2013, AT 11.58 AM

Copyright in the High Court of Australia

MS C.A. BOSTON:   May it please the Court, I appear on behalf of the applicant.  (instructed by Valos Black & Associates)

MR T. GYORFFY, SC:   If it please the Court, I appear on behalf of the respondent with my learned friend, MR E.H. RUDDLE.  (instructed by Office of Public Prosecutions Victoria)

CRENNAN J:   Yes.

MR GYORFFY:   There is one preliminary matter that I ask be dealt with.  I understand this will be by consent, your Honours, and it is pretty self‑explanatory if I hand up the proposed orders that are sought by consent in relation to this matter.

CRENNAN J:   This is an application for a non‑publication order?

MR GYORFFY:   Yes, your Honour.

CRENNAN J:   I might just have the matter called and then we will take the consent orders.

COURT OFFICER:   No other appearance, your Honour.

CRENNAN J:   Thank you.  Yes, Mr Gyorffy.

MR GYORFFY:   I might hand up the proposed order, your Honour.  It relates to just one item in the materials, that is annexure C to the applicant’s submissions in reply.  Your Honours would realise that that is the offending material in relation to the criminal prosecution.

CRENNAN J:   Yes, we have the minute now, thank you, Mr Gyorffy.  Yes, we make those orders in the form of the minute, thank you.

MR GYORFFY:   Thank you, your Honour.

CRENNAN J:   Yes, Ms Boston.

MS BOSTON:   If the Court please.  Stalking and making a false document, offences which this Court has not yet been able to consider the elements of, and which, in my respectful submission, are ill‑fitting suits for the conduct in which the jury clearly found the applicant engaged.  Indeed, the suits are not only ill‑fitting, they are bursting at the seams and they are made of shoddy.  The golden thread of the criminal law by contrast is made of much stronger stuff.  Its importance to the administration of criminal justice in this country cannot be overstated.  The phrase is oft repeated, an accused is not guilty unless the prosecution discharges its burden of proving each and every element of an offence beyond reasonable doubt.

BELL J:   I think you can take that as read.

MS BOSTON:   Every jury is told as much.  They are also told ‑ ‑ ‑

CRENNAN J:   Just remember we are not a jury, Ms Boston.

MS BOSTON:   Yes, your Honour.  They are also told they must be careful to exclude from their deliberations any feelings of prejudice, bias and sympathy.  The question of general importance raised by ground 1 is what approach then should appellate courts take in deciding whether it was open to the jury to be satisfied of an accused’s guilt beyond reasonable doubt?  Should they not too, as juries are told they must, exercise their task impartially and without prejudgment?

M v The Queen is clearly authoritative in terms of the test to be applied.  However, the High Court cases are silent, at least in the explicit sense, as to whether appellate courts should take into account defence counsel’s conduct in deciding whether a verdict is unsafe.  In my respectful submission, the reason for that silence is because the answer is obvious, being based on the most fundamental principle of the criminal law, that most famously encapsulated in Woolmington.  It not only requires a jury to acquit an accused if the elements of the offence are not proved beyond reasonable doubt, it also requires an appellate court to quash a conviction where it was not open to the jury to find the Crown had proved each element beyond reasonable doubt. 

Juries are entrusted with the task of determining an accused’s guilt or innocence and it is obviously important that appellate courts do not usurp that very important function. However, section 276(1)(a) of the Criminal Procedure Act (Vic) is a recognition that sometimes juries just get it wrong. The section is a safety valve but it cannot properly perform that task if the appellate court has regard to trial counsel’s opinion as to whether the elements have been made out.

One proposition which M v The Queen stands for is that the appellate court is to make an independent assessment of the evidence in deciding whether it was open to the jury to be satisfied of the accused’s guilt.  Surely that independent assessment should be free from prejudgment or bias based on what trial counsel did or did not do and should be purely based on whether the evidence entitled the jury to find the offence proven beyond reasonable doubt.

CRENNAN J:   Well, is what trial counsel do or do not do some indication of the real issues which are being debated in a trial?

MS BOSTON:   Well, it can be, your Honour, and – I am sorry to interrupt your Honour. 

CRENNAN J:   In a trial?

MS BOSTON:   It can be, your Honour, and certainly in the substantial miscarriage of justice context it is certainly relevant there.  The Crown has provided the Court – cited a whole – a bevy of cases in that context, the specific error and substantial miscarriage of justice cases, and the Crown’s reliance on those cases, I say, is misconceived though.  In such cases the reason the courts take into account trial counsel’s conduct is because he or she is in the best position to make forensic decisions about the admissibility of evidence, about the directions that should be given and about whether an injustice has been occasioned.  That is the rationale.

In my respectful submission, that rationale has absolutely no application to the unsafe context, and I make that submission for two reasons, in addition to the submission I have already made about the burden and standard of proof.  Firstly, the words themselves, “unreasonable” or “cannot be supported having regard to the evidence”, they leave no room for trial counsel’s conduct to be taken into account.  Secondly, the Criminal Procedure Act removed the previous requirement of proving a substantial miscarriage of justice in the unsafe context and as this Court recognised ‑ ‑ ‑

BELL J:   Ms Boston, I wonder if you could just assist.  Can you just take me to where in the majority judgment one finds the error of which you are now complaining?  You assert that the court failed to undertake the task in accordance with the very well‑established principles in dealing with such a ground.  Now, can you identify where the error is?

MS BOSTON:   I can, your Honour.  They are set out at paragraph 12 of the applicant’s revised summary of argument.

BELL J:   Perhaps if you could just take me to where in – I think it is in Justice Ashley’s reasons, is it?

MS BOSTON:   It is, your Honour.

BELL J:   Where in those reasons?

MS BOSTON:   Sorry, your Honour.  So, for example, at paragraph 38 his Honour said this:

It is trite that the appellant’s not guilty pleas put the Crown to proof of all elements of each offence.  But in light of the way that appellant’s counsel argued the matter in this Court, it is relevant to notice the way in which the critical issues were identified by counsel at trial.  What happened at trial cannot simply be ignored, at least where, as here, no contention is raised that trial counsel was incompetent.  It often enough happens that such an analysis casts doubt upon what are said on appeal to be fatal flaw in a Crown case.

Secondly, at paragraph 41, which appears at application book ‑ ‑ ‑

CRENNAN J:   Page 179.

MS BOSTON:   Page 179.  His Honour said this:

Counsel for the appellant, at the end of his final address, specifically agreed with that identification of issues –

namely, that it was a “who done it” case –

except that, using more conventional grammar, he identified the Charge 1‑3 issue as being ‘who did it?’; with the gloss, quite properly put, that the Crown carried the onus of proof.

Then at paragraph 49, and this relates to charge 3 in particular, his Honour said:

Counsel for the appellant did not address ‘course of conduct’ at all.  He concluded his submissions with respect to Charge 3 by submitting that the issue was

. . . whether the prosecution is able to prove beyond reasonable doubt that [the appellant] had some involvement in the sending of those letters . . . 

Then at paragraph 76, and this is in respect of charge 3 again:

This was another argument not advanced below.  It might have been addressed to the trial judge, on an application that the appellant must be acquitted on Charge 3; or it might have been the subject of a submission to the jury upon an issue of fact.

Now, this excerpt here falls foul of what I say the correct approach is in two respects.  Firstly, his Honour is taking into account the fact that trial counsel did not raise the issue before the jury, but his Honour is also taking into account the fact that trial counsel did not make a “no case” submission and, in my respectful submission, there is no way that can be of any relevance in deciding whether a verdict is unsafe, for two reasons:  firstly, because of the burden of proof and standard of proof reason I have already spoken of, but secondly, there is a higher test at the “no case” submission level.  So counsel may well decide that ‑ ‑ ‑

BELL J:   Did Justice Ashley rest his reasons on the fact that trial counsel failed to make a “no case” submission?

MS BOSTON:   I am not sure I could put it that highly, your Honour.

BELL J:   Well, in that case I think perhaps it is something of a distraction.

MS BOSTON:   Well, it is certainly not a distraction, your Honour.  There was heated debate on the issue in oral argument and his Honour has certainly – his impression has certainly been coloured at the very least by these matters so, in my respectful submission, his Honour has not undertaken the task required by M v The Queen and therefore there is a significant error of principle in his rejection of the appeal, your Honour. 

So it is my submission that either it has coloured his impression or, worse still, his Honour has viewed it as creating an extra obstacle for the applicant to surmount and akin to that which has been held to exist in the context of specific error and substantial miscarriage of justice context and I have already described why that is not appropriate.

Just going back to that point for one moment, I point out that this Court in Baini at paragraph 17, considering the substantial miscarriage of justice test, said that there is no room for discretion in the unsafe context.  If it was not open to the jury to convict, that completes the issue.

BELL J:   Indeed. 

MS BOSTON:   And ‑ ‑ ‑

BELL J:   Now, I am sorry, Ms Boston, but where in the reasons of the majority does one find error in the conclusion that on the whole of the evidence it was open to the jury to convict?

MS BOSTON:   Well, your Honour, in my respectful submission, the submissions in support of the other grounds demonstrate that these convictions were unsafe and ‑ ‑ ‑

BELL J:   So does that depend upon a view that it was not open to conclude that posting letters to nine recipients ‑ ‑ ‑

MS BOSTON:   No, it - I am sorry to interrupt.

BELL J:   I simply seek to understand how you are putting your case, Ms Boston.

MS BOSTON:   It does not, your Honour.  What it demonstrates is that this is a good vehicle to decide the point because ‑ ‑ ‑

BELL J:   What point?

MS BOSTON:   ‑ ‑ ‑ the point being whether the appellate court is entitled to take into account in deciding whether a verdict is unsafe the way the trial has been run.  The reason it is a good vehicle is because there are very good reasons for concluding that these convictions are unsafe.

BELL J:   Well, perhaps if you go to those.

MS BOSTON:   I am sorry, your Honour, I do not quite follow.

BELL J:   No, I am sorry, Ms Boston, but it is just – broad statements of principle do not assist so much as showing by reference to the reasons the particular complaint that you make.

MS BOSTON:   Yes, your Honour.  So that is the complaint in respect of ground 1.  It is that his Honour has taken into account an irrelevant consideration, effectively, in deciding that ‑ ‑ ‑

BELL J:   His Honour’s reference to the absence of an application that there was no case on counts 2 and 3 was an irrelevant consideration, is that right, which vitiated his Honour’s conclusion, applying the M v The Queen test.  Is that the proposition?

MS BOSTON:   That is one half of the proposition, the other half of the proposition being that his Honour has taken into account erroneously the fact that trial counsel did not raise before the jury that the elements now in contention were in dispute, although at trial his Honour did put the Crown to its proof and repeatedly told the jury that the burden was on the Crown to prove its case and that the Crown was directed on all elements of the offence and, therefore, obliged to consider whether each element had been established beyond reasonable doubt.

Your Honour, in terms of the other grounds, I might perhaps move on to ground 4 first.  This is the “make false document” charge, section 83A of the Crimes Act which obviously has replaced the common law offence of forging and uttering.  At first glance the wording of this ground does not appear to raise a point of principle.  It actually does though and issue is taken with the majority’s reasoning regarding the mens rea required by section 83A, though I concede that the written submissions do not adequately make the point and I will elaborate now.

Clearly, the section does not require that prejudice to somebody actually be sustained; that is clear.  However, it is clear both from the wording of the section and also the Victorian Court of Appeal’s judgment in the R v Gatzka at paragraph 10 that the accused must intend that the victim, being the recipient of the newsletters here, do or not do an act to a person’s prejudice by reason of the victim, the recipient, accepting it as genuine.  This intention was described as twofold in the R v Gatzka and by his Honour Justice Priest in dissent in this case as a double intention.

Despite these labels it is clear both from the reasons in Gatzka and his Honour Justice Priest’s reasons and from the wording of the statute there are really three requirements.  Because of the linkage that is required between the two primary intentions, the second has to be by reason of the first, and that is the difficulty, that is the problem, the fatal flaw in this case, with respect.  So in dissent in this case Justice Priest held that the verdict on charge 2 was unsafe for two alternative reasons.

First, it was not open to the jury to exclude the possibility that the applicant intended merely to humiliate or embarrass the complainant, which would not amount to prejudice as defined in section 83A(8)(a)(ii), namely, that the act or omission will result:

in the person’s being deprived of an opportunity to earn remuneration or greater remuneration ‑ ‑ ‑

CRENNAN J:   Now, Ms Boston, you do have that dissent to refer to, but do you point to error in Justice Ashley’s reasons on this point, which I think are to be found at pages 191 and 192 of the application book in paragraphs 98 and 101?

MS BOSTON:   Yes, your Honour, and I am not ‑ ‑ ‑

CRENNAN J:   Are you coming to that?

MS BOSTON:   I hesitate to use that phrase, your Honour, by I do need to finish this point in order to prove the error that ‑ ‑ ‑

CRENNAN J:   Very well.

MS BOSTON:   Very briefly.  So the second basis upon which Justice Priest found that the conviction was unsafe, that even if the applicant’s intention was to cause HG prejudice as defined in the statute, the act causing the prejudice, namely, the recipients contacting the school resulting in her losing her job, though that did not in fact happen, that would not be by reason of the recipients thinking that the newsletter was genuine.  That would not be the reason that they would contact the school.  At the very least, it was not open to the jury to exclude that possibility, so that is the second basis Justice Priest found it was unsafe.

Now getting to what I purport to be the error in Justice Ashley’s reasoning.  Justice Ashley approached the question in a different way, in my submission, erroneously, by considering the two intentions and linkage requirement in a segmented fashion.  This is at application book page 191, your Honours, paragraph 98.  His Honour stated:

In my opinion, it was open to the jury to reason, in these circumstances, that the appellant had created the document intending, probably irrationally, to induce the recipients to accept it as genuine, and in that state of mind, act to the complainant’s prejudice –

and these are the important words –

(for the moment, not giving that word its s83A meaning).

After explaining his reasons for reaching that conclusion his Honour then said at paragraph 102:

Then there is the question of ‘prejudice’.

His Honour then proceeded to consider the statutory definition of the term, ultimately concluding that it was open to the jury to find that the applicant intended the recipients to act to the complainant’s prejudice in a statutory sense.  But what his Honour failed to do is consider the second basis upon which Justice Priest found the conviction was unsafe, namely, whether the accused intended the recipients to act to the complainant’s prejudice in a statutory sense, as required, by reason of the ‑ ‑ ‑

CRENNAN J:   Does not his Honour deal with that at paragraph 103?

MS BOSTON:   Well, with respect, no, your Honour, because at paragraph 103 his Honour does not consider the linkage requirement.  All his Honour does here is consider in an isolated fashion whether it was open to the jury to conclude that the applicant’s intention was that the complainant be prejudiced in a statutory sense.  His Honour has not, in my respectful submission, considered whether that intention to cause prejudice in a statutory sense was by reason of the recipients accepting the bogus newsletter as genuine.

BELL J:   How else, if one accepts that the person had the intention to induce another to accept the document as genuine, and by reason of so accepting it to do an act to the prejudice of the other in a statutory sense, how – I am just having difficulty understanding.  His Honour may not have separated it out into two steps, but surely it follows as night day that that was his conclusion, so one has a difference in the appellate court respecting that factual issue.

MS BOSTON:   With respect, it is not simply a difference of opinion as to the factual issue because it is the principled approach which their Honours took, with respect.  I notice the light.

CRENNAN J:   Thank you, Ms Boston.  We will not trouble you, Mr Gyorffy.

We are not persuaded that an appeal would have sufficient prospects of success to warrant a grant of special leave to appeal.  Accordingly, the application for special leave to appeal is refused.

MS BOSTON:   If the Court please.

AT 12.21 PM THE MATTER WAS CONCLUDED