Smith v The Queen

[2015] HCATrans 222

[2015] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S61 of 2015

B e t w e e n -

ROBERT TERRY SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 2015, AT 9.59 AM

Copyright in the High Court of Australia

MR P.M. STRICKLAND, SC:   I appear with my learned friend, MS A.M. MITCHELMORE, for the applicant.  (instructed by Legal Aid NSW)

MS N.F. NOMAN, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

BELL J:   Yes.

MR STRICKLAND:   Your Honours, could I just hand up a two‑page chronology that I wish to take the Court to? 

BELL J:   Yes.

MR STRICKLAND:   Your Honours, first we do seek that the time limit under rule 41 be dispensed with.  At application books 82 to 86 we have referred to the material.

BELL J:   Yes.  Any objection to that, Ms Noman?

MS NOMAN:   No, there is not, your Honours.

BELL J:   Yes, you have that leave.

MR STRICKLAND:   Your Honours, the reason why special leave should be granted in this case is because there has been a miscarriage of justice.  The Court of Criminal Appeal erred in refusing to admit fresh evidence of the applicant’s undertaking to assist and, had that evidence been admitted and properly taken into account, it would have resulted in a reduced sentence.

The fresh evidence that we sought to lead is identified in application book 222 with the exception of Mr Austin’s - if you add Mr Austin’s affidavit to that.  The question of public importance in this case is that discounts for assistance are recognised generally in Australia.  There is essentially the same test applied in all jurisdictions across Australia, that is, if it is in the interests of justice to receive fresh evidence where there has been a miscarriage of justice, appellate courts can entertain that evidence.  So, there is an Australia‑wide application for this matter.

The point of public importance is where Crowns change their position on the significance of an undertaking by an applicant to give evidence, as they have in this case, it is a matter of public importance that any change of position should be recognised by an appellate court, provided that it is satisfied that the assistance is of some significance.

BELL J:   It must depend on the circumstances, must it not?

MR STRICKLAND:   Yes, indeed.

BELL J:   Here, the contents of the induced statement were inconsistent with the statements that had been made to the undercover officer?

MR STRICKLAND:   Yes.

BELL J:   In some respects they might have assisted the case of the co‑accused because they downplayed, as it were, the significance of the sound of the fall.  There were lively reasons to doubt the credibility of the statements in the induced statement.  Is that fair?

MR STRICKLAND:   It is fair to say that the jury could have entertained doubts about the veracity of the applicant but that is not the end of the question because there are two critical factors as to why the court erred in not finding it was significant.  The first is that there were two critical witnesses, one of them was Ms Abrahams and the other was the applicant.  They were the only two people present in the room so by its very nature, being able to say what the applicant saw and heard is of importance.  It is not marginal. 

Secondly, the applicant’s version of events was significantly inconsistent with Ms Abrahams’.  Essentially, his evidence according to his induced statement was he heard a bang.  He went to see the child, the child was thereafter unconscious despite numerous attempts by him to revive the child, CPR.  He also said that “I tried to get help and Ms Abrahams did not want me to get that help”. 

Now, if that evidence had been accepted - and that is a matter for the jury ‑ it may or may not have been ‑ it would have been highly significant because it was inconsistent with Ms Abrahams’ evidence.  The other matter, your Honour, is just matters of inference, I accept, but matters of logical inference.  The Crown obviously thought the applicant was of some significance because he elected to call the applicant. 

BELL J:   Well, Mr Strickland, the Crown is in a difficult position - damned if he does and damned if he does not.  The task for the court on sentencing under 23 of the Sentencing Procedure Act, required consideration, amongst other things, of the truthfulness, completeness and reliability of the information provided by your client.

MR STRICKLAND:   Yes.

BELL J:   One might think there were very real issues in that respect.

MR STRICKLAND:   Your Honour, appellate courts - R v Stanbouli is one such example, have considered that a discount is applicable where an applicant gives half‑truths and half lies.  Again, it depends on the circumstance of the case but, your Honour, in my submission, the significance of the evidence can be judged from the reaction of Ms Abrahams and Ms Abrahams’ legal advisors.  They were prepared to run a trial.

There had been an application for judge alone by Justice Harrison.  That had been refused.  The day before the change of position that was notified to them they were investigating appealing Justice Harrison’s decision.  Then Ms Abrahams’ lawyers get the news that the Crown proposes to call the applicant.  Mr Tiedt in his affidavit says I regarded that induced statement as being highly significant, especially prejudicial.  They discuss that induced statement with Ms Abrahams and she pleads guilty. 

Now, Justice Fullerton, in remarks during argument, not reflected in the judgment, thought, well it is obvious, it is inevitable that that chain of events contributed to or led to the plea of guilty.  Now, that itself, in my submission ‑ ‑ ‑

BELL J:   I suppose a countervailing consideration might be that the closer the trial came, the realisation it would be a jury trial were factors that were significant to the determination that was made.  At the end, it is speculation, is it not?

MR STRICKLAND:   Your Honour, in my submission, it goes beyond speculation to suggest that the applicant’s lawyers would not have discussed with their client Mr Tiedt and Ms Manuell’s own views about the significance of this, and what they regarded as the highly damaging aspect of the applicant’s undertaking.  It is logical as well because from their point of view they knew that that account as described in the induced statement was inconsistent with their own client’s account.

GAGELER J:   Well, ultimately it comes down to the inference of fact to be drawn and you would be wanting us to draw a difference inference from that which the Court of Criminal Appeal was prepared to draw on the material.

MR STRICKLAND:   That is so, your Honour.  We say the Court of Criminal Appeal’s inference was not reasonably open to it and the statement made by Justice Fullerton which was that, look, it is as clear as day that the plea of guilty arose from this chain of events.  What is really troubling me, said Justice Fullerton, is whether it constitutes fresh evidence, but, your Honour, when the court looks at the timing of the plea, the contents of the induced statement, Ms Abrahams’ own lawyers’ views, set out logically in the affidavit of Mr Tiedt, about how damaging it was, in my submission, it was not a reasonable inference so to find.  The Court of Criminal Appeal’s finding was that evidence was not capable of constituting assistance.  They did not go into the ‑ ‑ ‑

BELL J:   Whereabouts do we find the ‑ ‑ ‑

MR STRICKLAND:   That is at application book 69, line 15, paragraph 73:

I am not satisfied that either the induced statement or the notification that the applicant would give evidence was capable of constituting assistance in the relevant sense ‑ ‑ ‑

GAGELER J:    That follows from the summary in paragraph 72.

MR STRICKLAND:   Yes, and that signifies, in my submission, an error because even if it be the case that a jury could have, and I accept that, could have had doubts, real doubts about the reliability or the complete truthfulness of the applicant, it is often the case that co‑offenders with their own interests give evidence and there is material that undermines the co‑offenders’ evidence, in this case, the applicant.  That is often the case but here the applicant’s material in the induced statement was not inherently implausible.  It was not incapable of being accepted by the jury.  That is where we say the error is.

BELL J:   That induced statement was available at the sentence hearing, was it not?

MR STRICKLAND:   Yes.

BELL J:   Counsel then appearing for your client did not traverse the proposition put forward by the Crown that the induced statement was of no assistance to it.

MR STRICKLAND:   He queried it, your Honour, but what he did say in his affidavit was had he known that the applicant was going to give evidence he would have made submissions that a discount should have been given.  Now, he could have, he could have on sentence nevertheless made submissions that the induced statement, whether it be called or not, merited a discount but he was misled, and I do not mean that in any pernicious sense, but he was misled as to the Crown’s position.  In my submission, it ought not to be the case that where an applicant’s counsel is misled as to the Crown’s position that the applicant should be hoist on the petard ‑ ‑ ‑

BELL J:   He was not misled.  What happened was the Crown, as the trial approached, changed its position, decided that it would notify Ms Abrahams’ lawyers of its intention to call your client.  In terms of the material that was before the Court of Criminal Appeal, there was Mr Tiedt’s affidavit and a curious document in some respects, understandably no waiver of client legal privilege ‑ ‑ ‑

MR STRICKLAND:   Yes.

BELL J:   But what one is left with is a very incomplete account of what occurred at a conference where it is accepted that the conference had been appointed to convey to Ms Abrahams the loss of the application for judge alone trial and that might be thought to be a significant matter if one is drawing inferences about what led to the change of position.

MR STRICKLAND:   All the Court of Criminal Appeal knew about that conference that was significant was (a) Mr Tiedt’s views about the significance of the evidence, its prejudicial effect; (b) he actually communicated, they discussed the induced statement and then what followed from that was a change of plea. 

Now, the Court of Criminal Appeal, in my submission, also had not just the question of timing, but they also had the contents of the induced statement.  What the Court of Criminal Appeal failed to do was they said the induced statement added nothing new to what was already known to the applicant’s solicitors and it added nothing new to the Crown case.  The Crown in its written submissions acknowledged the induced statement went beyond what the applicant had said to the undercover officer.  The Crown did that to show the inconsistencies but it also demonstrates the newness of it, that is, the newness of the induced statement. 

So the Court of Criminal Appeal erred as a matter of fact on that matter but, moreover, what was in the induced statement, that is, how the child remained unconscious, that is something that was consistent with the medical evidence in the trial.  It was consistent with the Crown case about the charge of murder they were bringing against Ms Abrahams.  It was something that was capable of being accepted by the jury so that is where the Court of Criminal Appeal erred, in my submission, in not recognising that matter and ‑ ‑ ‑

BELL J:   If the court did err and misapprehended the facts in relation to the contents of the induced statement and its newness, you would be asking this Court to look at that issue again.  The Crown pointed out that there was new material in order to illustrate how worthless the induced statement was having regard to the inconsistencies.

MR STRICKLAND:   Yes.

BELL J:   At the end of the day, Mr Strickland, is that going to get you very far?

MR STRICKLAND:   Your Honour, the answer is yes because if the court properly took into account that new material, and we say the error is not simply they did not admit it, the court did not admit it because they thought it was of no value.  They said that expressly.  We say that is where the error lies.  If the assistance had some value, it is not those categories of cases where all parties are singing from the same song sheet and are accepting the complete utility and honesty.  This is a more complex, more subtle case where - it is a Stanbouli‑type case, part truth, part lies.  The question is was the error that it was not capable of constituting assistance, was the error that it was of no value at all?

The court, in my submission, did not take into account - the new information was Justice Latham proceeded on the assumption that the applicant was not going to give evidence.  The applicant was going to give evidence.  That is new of itself.  That Ms Abrahams did plead guilty - that is new, and then one looks, as I have said before, at the contents of the induced statement.  We say it is significant for the reasons I have said.

GAGELER J:   We are long way from any question of principle.

MR STRICKLAND:   Your Honour, that is so.  The only relevant point of legal principle which we have identified in our written submissions is the court erred in finding that it was not capable of constituting assistance, not capable because the applicant had to prove that the plea of guilty resulted from the assistance.  That is what that paragraph I have taken your Honours to - and that, in my submission, cannot be right and it is inconsistent with the legislation.  It cannot be right because where co‑offenders give evidence in trials is it to be the test that the applicant has to establish that the reason why there was a finding of not guilty or there was a finding of guilty was because of the evidence.

BELL J:   But nothing in this judgment would commend that view.  This was a consideration, an evaluative consideration by the Court of Criminal Appeal of whether 23(2) of the Sentencing Procedure Act was engaged in the particular and unusual circumstances of this case.

MR STRICKLAND:   That is so.  In my submission, that paragraph I have taken your Honours to, does elevate – or it does purport to establish a principle of the requirement to prove a matter that we say is not required to be proved by section 23.  The only other relevant legal point is the one of

the procedural fairness principle that we have raised and that is the applicant lost the case in the course of discussions, it having been accepted, admittedly in the course of discussion on a preliminary basis, that our fundamental, primary factual submission which was this assistance led to a plea of guilty was accepted by Justice Fullerton and agreed with by the Chief Judge at Common Law.

Where the applicant lost the case was on the basis that, well, look, none of this was new information to the applicant’s solicitors and they ought to have known that the applicant was going to be called at the trial.  That was a real possibility.  Now, those matters were not canvassed at all in the course of argument or in the course of submissions and ‑ ‑ ‑

BELL J:   Justice Fullerton’s statement came very, very late on the hearing of the appeal.  Is it suggested that the appeal would have been conducted differently had that statement not been made?

MR STRICKLAND:   Your Honour, can I answer it this way?  If the court had raised as possible findings the matters that they downed the applicant on, such as the applicant’s solicitors should have known that he was going to be called, then those matters would have and could have been answered in the course of argument. 

If I could just return to Justice Gageler’s point, we accept this is fundamentally a miscarriage‑type argument and the public importance is assistance has an Australia‑wide application so does have some wider public significance.  That is all I wish to say.

BELL J:   Thank you.  Yes, thank you, Ms Noman, we do not need to hear from you.

In our opinion there are insufficient prospects, were special leave to appeal granted, that the appeal would succeed.  Special leave is refused.

AT 10.20 AM THE MATTER WAS CONCLUDED