Smith v The Queen; Ferguson v The Queen; Forti v The Queen; Grimshaw v The Queen; Coburn v The Queen (M50-94; M51-94

[1994] HCATrans 386

•

'

r

IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Melbourne No MS0 of 1994

B e t w e e n -

DONALD WILLIAM NASH SMITH

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No MSl of 1994

B e t w e e n -

CHRISTOPHER FERGUSON

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No MS2 of 1994

Smith(2) 1 28/6/94

B e t w e e n -

JEFFREY FORTI

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M53 of 1994

B e t w e e n -

RODNEY THOMAS GRIMSHAW

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M54 of 1994

B e t w e e n -

WILLIAM JOHN COBURN

Applicant

and

THE QUEEN

Respondent

MASON CJ
DEANE J
DAWSON J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 28 JUNE 1994, AT 4.06 PM

Copyright in the High Court of Australia

Smith(2) 28/6/94

MR M.S. WEINBERG, QC: If the Court pleases, in these

matters I appear together with my learned friend,

MR P.A. DUNN, on behalf of the appellants.

(instructed by Kenna Croxford & Co)

MR D.R. MEAGHER, QC: If the Court pleases, I appear with

MR P.G. LACAVA, for the respondent. (instructed by

J. Buckley, Solicitor to the Director of Public

Prosecutions (Victoria))

MASON CJ:	Mr Weinberg.
MR WEINBERG:	If the Court pleases, might we hand to the

Court copies of our outline of submissions.

MASON CJ: Yes, Mr Weinberg.

MR WEINBERG:  If the Court pleases. When His Honour

Mr Justice Vincent was asked to stay the charges brought against the present appellants, in our submission His Honour approached the issue and the

application with some circumspection. His Honour

was certainly conscious of the observations of this

and other courts concerning the rising number of such applications and th~ unusual nature of what

His Honour was being asked to do. There were

however, in our submission, certain features

officers with the murder of a man whom they had set

surrounding the decision by the Director of

out to arrest which caused His Honour sufficient

disquiet to embark upon an examination of whether

the prosecution case, at least in relation to the

present appellants, was misconceived and clearly

foredoomed to failure.

It is submitted that before we move to the

specific grounds of appeal, and in particular

jurisdiction, a very brief analysis of what

His Honour did in His Honour's ruling might be of

assistance to the Court, unless the Court has

already read the ruling closely and does not

believe that it requires that degree of analysis.

MASON CJ:  I think that would be a bold assumption to make,

Mr Weinberg.

MR WEINBERG:  In that case if I may take the Court to

Mr Justice Vincent's ruling which appears in the

appeal book at volume 2 commencing at page 265, and

just analyse the structure of the ruling without a

great deal of detail. His Honour started by

setting out a number of paragraphs contained within

what His Honour treated as being the prosecution

case statement provided to the court pursuant to

the provisions of the Crimes Criminals Trials Act

of 1993. That legislation is important because,

Smith(2) 28/6/94

for the first time in Victoria, it requires the

Crown to set out in a specific though concise way -

it said concise - the way in which the Crown puts its case, including any propositions of law, fact

and inferences that it desires the jury to draw,

and His Honour set out some of the paragraphs from
that prosecution case statement, and at page 267

His Honour sets out what appears in paragraph 7 of

a prosecution case statement, which the Court will

also find set out at page 14 of appeal book

No 1, which summarizes the prosecution case. And,

having then set out those provisions, His Honour
noted at page 268 at line 15:

Following arraignment, applications for a stay of the proceedings against them have been made on behalf of each of the accused.

Specifically, the contention has ben advanced,

on behalf of each, that the case which the

prosecution proposes to present against him

is, as a matter of law, incapable of success.

And indeed, that was the submission that was put

and that was what His Honour was asked to rule

upon.

Accordingly, the argument continues, it would

constitute an abuse of the process for the

proceeding to continue.

His Honour went on to say:

The applications and the situation with

which the Court is confronted when dealing
with them are, in my experience and by reason

of the presence of a number of factors, unique

in more than one respect.

His Honour comes back to that a little later in his

ruling. His Honour then moves to examine a little

bit of the history of how this matter came to be

before the Supreme Court of Victoria and noted that

none of the appellants, indeed none of the accused,

had been committed to stand trial; there had been

no committal hearing at all, they had all been

directly presented, ex officio indictment in

effect. There had been a coronial inquiry

conducted in, I think, 1990. The death of the

deceased Jensen had occurred on 11 October 1988;

there had been a lengthy coronial hearing occupying

that none of the persons who His Honour described,

some months in the early part of 1990, and what

and I think counsel all used this term, none of the

non-shooters, were ever regarded as being in any
way at risk of prosecution resulting from the death

of Jensen and what happened at the coronial inquest

Smith(2) 28/6/94

was that those who had fired shots, particularly

Messrs Hill and Saunders, declined to give evidence

- they claim a privilege against self-incrimination

as they are entitled to do under the relevant

Victorian legislation - but each of the other

persons involved in the arrest of Jensen had gone

into the witness box and had been examined and

cross-examined about their conduct during the
circumstances surrounding the death of Jensen, and
cross-examined very vigourously, it must be said,
as His Honour found, by counsel representing the

family of the deceased or counsel with other

interests.

So, what was unusual about this case was that

the Crown was seeking to rely upon a number of the
answers given by the appellants in this case in a

coronial hearing in which they were never cautioned

or warned, it was never considered by anyone that

they were at any risk of prosecution so far as the

circumstances surrounding the death of Jensen were

concerned, and they had given evidence, and that

the answers that they had given would necessarily have to be considered in the light of the context

in which those answers were given. As His Honour

noted at page 271 at line 9:

However, when questions arise as to the

meaning or effect of a statement which may be

inculpatory or the inferences which may -

His Honour has underlined that -

be properly drawn from it, these matters may

assume relevance.

And then further on page 271:

However, as I have mentioned, the possible

criminal culpability of any of them for the

death of the deceased was simply not

addressed. A very different situation is
observable with respect to the possibility

that they may have made false statements and

have given false evidence to protect others.

These issues were obviously to the forefront

of the minds of all present at the inquest.

His Honour then went on to set out the Victorian legislation, and at page 273 His Honour indicated

that he was not prepared to exclude all of the

statements made by the police officers under

cross-examination at the coronial inquest, but

His Honour said at line 14:

Whilst I rejected that submission, I have been, at all times, conscious of the obvious

Smith(2) 28/6/94

dangers involved in the use of statements made

against this background and where different hypothesis may be advanced to explain their contents, as admissions, as demonstrating a

consciousness of guilt of involvement in a

specific crime on the part of a particular

accused, or as providing adequate bases for

the drawing of adverse inferences in a
criminal trial.

His Honour then noted that it was not until some five years or so after the death of Jensen that

charges were laid, and Your Honours will see that

at the bottom of page 273:

It was not until July 1993 that charges

were laid against the accused. A prosecution

case statement which outlines the case to be

made against each of them was eventually

delivered at the end of September 1993.

And there is an amended version of that in the

appeal book dated 12 October 1993. It occupies, as

the Court will see, in excess of some 150 pages.

MASON CJ: What is this directed to?

MR WEINBERG:  Your Honour, this merely sets the scene for

our arguments relating to grounds 2 and 3; it is

not directed to the legal submission that will be

made in relation to jurisdiction. I am content to

deal with the legal submission on jurisdiction, if

that is of more immediate assistance.

MASON CJ:  We think you ought to go to jurisdiction first,

Mr Weinberg.

MR WEINBERG:  If the Court pleases. The issue of

jurisdiction, Your Honours, requires at the outset

an examination of two sections of the Supreme Court

Act of 1986, and they are subsection 10(2) and

subsection 14(3). It would also be of assistance

if the Court had the Supreme Court Amendment Act of

1984, Act No 10075, which set out the amended

section 42 of the earlier Supreme Court Act of
1958. So, the starting point then, section 10(1)

of the Supreme Court Act of 1986:

(1) The Court constituted by a Judge may hear

and determine all matters, whether civil or

criminal, not required by or under this or any
other Act or the Rules to be heard and

determined by the Full Court.

(2) Unless otherwise expressly provided by

this or any other Act, an appeal lies to the

Smith(2) 6 28/6/94

Full Court from any determination of the Court

constituted by a Judge.

One then moves to subsection 14(3), which comes

under the heading, "Restriction on appeals", and

subsection (3) provides:

Except as provided in Part VI of the Crimes

Act 1958, an appeal does not lie from a

determination of the Court constituted by a

Judge made on or in relation to the trial or

proposed trial of a person on indictment or
presentment.

An objection was taken to the competency of the appeal brought against the ruling and orders of

Mr Justice Vincent. The ruling was given on

13 December 1993 and orders were taken out and they

are set out in the appeal book. An appeal was

brought by the Crown to the Appeal Division of the

Supreme Court - in other words, the Full Court in its, as it were, civil jurisdiction, if one can put

it that way - in reliance upon some observations of

an earlier decision of the Supreme Court of

"Boehm v The Director of
Victoria in the case of the appeal division, comprising Their Honours

Mr Justice McGarvie, Mr Justice Beach and

Mr Justice Hampel, had been dealing with the

question of whether an accused person, who had been
refused a stay of a trial by a judge of thecounty
court and who had then sought to have that decision

overturned by a single judge of the supreme.court

and failed before Mr Justice Ormiston, could the

bring an appeal to the Full Court from the judgment
of Mr Justice Ormiston, pursuant to the provisions

of section 10(2) of the Supreme Court Act.

The appeal division held that no appeal lay to

an accused person against the refusal of a trial

judge, whether it be in the supervisory

jurisdiction of the court, as was the case here

because Mr Justice Ormiston had been exercising

supervisory jurisdiction, or whether it be in the

direct jurisdiction of the court - if

Mr Justice Ormiston had been the trial judge and

had refused the stay, the reasoning would have been

the same, there would be no appeal to an accused in

those circumstances, and the reason given was that,

upon its proper construction, section 10(2) in

combination with section 14(3) simply did not

permit an appeal to deprive the Full Court of any

jurisdiction, and the reason was that there was, of

course, an available alternative remedy to an

accused person.	He had rights of appeal under
Part VI of the Crimes Act.	If he were convicted of

a crime then he could bring an appeal to the Court

Smith(2) 7 28/6/94

of Criminal Appeal against that conviction, and the

court was of opinion that that rendered any appeal

under section 10(2) unavailable, but there were two

passages which appear at page 502, where the court

went on to deal with the question of whether the

Crown could bring an appeal in circumstances where

a trial judge had granted a stay, and if the Court

could turn to page 502 line 1 of the judgment, what
the appeal division said was this:

If the judge refuses a stay, any appeal must await verdict in the trial. If there is an

acquittal there is no appeal and no need for

one. If there is a conviction an appeal lies

under Part VI of the Crimes Act. If the judge
of this court grants a stay, as no appeal

against that lies under Part VI of the

Crimes Act, an appeal against the

determination lies under section 10(2).

So that is one of the two sentences where the court

said that there would be an appeal in favour of the

Crown if a stay had been granted by a trial judge,

and a little further on in that page, the court

said in the last - I haVla lost the passage -

MASON CJ: Second-last penultimate paragraph, is it not?

MR WEINBERG: Sorry, Your Honour.

DEANE J: It is page 502 in the fourth paragraph.

MR WEINBERG: Fourth paragraph, Your Honour:

On the other hand, if there is not an ongoing

trial or proposed trial because a judge has

stayed it to prevent an abuse of process -

I am grateful for that, Your Honour -

there will be an appeal against the

determination to stay.

So, at those two points on that page the court, in

effect, said that the Crown is entitled to bring an

appeal pursuant to section 10(2) notwithstanding

the operation of section 14(3) in circumstances

where a trial judge has granted a stay and the

Crown is dissatisfied with that decision.

Our contention before the Full Court in this

case was that firstly those observations were

dicta, were to be regarded as dicta, and should not

be regarded as binding by the court, and secondly,

that the observations in any event were erroneous.

Srnith(2) 28/6/94

DAWSON J: You are going to develop that, are you? What

does that sentence at the top mean?

MR WEINBERG:  The sentence at the end of paragraph 1,

Your Honour:

If the judge of this court grants a stay, as no appeal against that lies under Part VI of the Crimes Act, an appeal against the

determination lies under section 10(2).

It means, Your Honour, that if a stay is granted by

a supreme court judge, a judge of this Court,
because no appeal lies under Part VI - the reason

that no appeal lies under Part VI is because

appeals under Part VI are confined to appeals

against conviction or sentence - the decision by a

trial judge to grant a stay does not constitute, in

any sense, a conviction or sentence, the director's

rights of appeal are limited to appeals against

sentence only, specifically, therefore Part VI is

not available to the director, therefore the

director should have the right to appeal under

section 10(2).

DAWSON J:  What about section 14(3)?

MR WEINBERG: Well, the court construed section - that was

our answer, Your Honour. Your Honour, our

submission was and is that on its plain reading the

section suggests that there is no appeal to the

Full Court, but what the appeal division did in

Boehm's case was to come to a different view about

that section and those words and it did so based

upon an analysis of the history of section 14(3),

section 10(2) and the forerunner to section 10(2),

which I will tell the Court about in just a moment,

and it came to a different interpretation of

section 14(3). We certainly say that giving those

words their ordinary and natural meaning, the way

that one would approach their construction is to

ask this question, has there been a determination

of the court constituted by a judge made on or in

relation to the trial or proposed trial of a person

on indictment or presentment? If the answer to

that question is, yes, there has, then no appeal

lies unless it is available pursuant to Part VI of

the Crimes Act. We say that that is a fair and

natural interpretation of the words of that

section.

In answering the question, has there been a

determination of the court constituted by a judge

made on or in relation to the trial or proposed

trial of a person on indictment or presentment, we

say that admits of only one answer. There has

been. What His Honour Mr Justice Vincent did was

Smith(2) 9 28/6/94

to make a determination, in our submission.

His Honour was a judge, the determination was made

on or in relation to the trial, in fact the jury

were arraigned before this ruling was made - there

had been an arraignment some time before, which

meant that the trial itself had either commenced,

or at the very least it could be described, and

could only be described, as a proposed trial, but

giving those words their ordinary and natural

meaning, this was a determination of a court

constituted by a judge made on or in relation to
the trial or proposed trial of the person on

indictment or presentment, and it is difficult to

see how it could be regarded as anything other than

a determination of that character.

DAWSON J: But what they were saying was that section 14(3)

does not apply where the court is exercising

supervisory jurisdiction.

MR WEINBERG:  No, Your Honour, that was not what they were

saying, with respect - - -

DAWSON J: Perhaps you could enl~rge on it.

MR WEINBERG:  - - - because what Their Honours were saying

in Boehm's case was that whether or not the court

was exercising supervisory jurisdiction or direct

jurisdiction, no appeal lies to the Full Court from

a determination by a judge that there should not be
a stay, because there is an alternative remedy

available under Part VI. And then what the court

did was to say, well if that is the reasoning, then

the converse must apply; if there is no remedy

available under Part VI there must be an appeal

under section 10(2). And it is at that point that

we say there is a logical fallacy, in our

submission, in the reasoning of the court in

Boehm's case, because it does not follow, with

respect, that merely because, as a matter of

construction, and construing section 14(3), an

accused who has been refused a stay is not entitled

to bring an appeal against that refusal, given that

he has an alternative remedy available to him under

Part VI.

It does not, with respect, follow that the

fact that the Crown does not have available to it a

remedy under Part VI permits the Crown or enables

the Crown in, we say, direct contravention of

section 14(3) to bring an appeal to the Full Court,

but that is directly contrary to the reasoning of

Boehm's case, because Boehm agreed, with respect,

we say - we submit that what Boehm did was to

accept that the construction which we favour was

one that was open and indeed seems a natural

construction, but that for reasons of history and

Smith(2) 10 28/6/94

based on an analysis of parliamentary debates,

section 14(3) should not be read in the way that we

have contended for.

We note that some of Your Honours appear

puzzled. The words do, on their face, in our

respectful submission, simply support our

contention, that there is no appeal.

GAUDRON J:  You are addressing your remarks now to what

appears at the top of page 502, are you, not to the

fourth paragraph, because the position may well be

different depending on whether it is supervisory or
direct jurisdiction in relation to what is said in

the fourth paragraph, may it not?

MR WEINBERG:  It might, Your Honour; we did not detect any

difference in the reasoning in Boehm between a

judge exercising supervisory jurisdiction and a

judge exercising primary jurisdiction.

GAUDRON J: What I am suggesting is, if it is supervisory

jurisdiction, a stay having already been made prior

thereto, what the judge exercising supervising

jurisdiction is doing ma~ not be a decision in

relation to a trial or a proposed trial.

MR WEINBERG:  That might be right, Your Honour; that cmight

well be right but, of course, it is not the

position in this case.

GAUDRON J:	No .
MR WEINBERG:	In this case, in our submission, there can be

only one characterization of what

Mr Justice Vincent did; it was, in our submission,

a determination within the terms of section 14(3)

in relation to a trial or a proposed trial on

indictment.

Now Your Honours have asked, how did the court

come to the decision that it did in Boehm's case,

and the answer lies in an analysis of, as it were,

the history of section 10(2) and its forerunner.

What the court did, if I may invite the Court to look at page 496 firstly, was to set out section 10

and section 14(3), and about half-way down the page

it dealt with the Crown submission:

Mr Maguire submitted that the orders of

Justice Ormiston dismissing the applications

were "determinations" within the meaning of

section 14(3) and that when the words "on or

in relation to" the trial or proposed trial

were given their appropriate wide

interpretation, it was clear that an appeal

was incompetent because the subject matter of

Smith(2) 11 28/6/94

the stay applications was a trial or proposed

trial on presentment.

Mr Winneke, QC, who with

Mr David Galbally appeared for the appellants,

argued that both as a matter of its history

and its terms, section 14(3) does not operate

to restrict the appellate jurisdiction of this

court because Mr Justice Ormiston exercised
the inherent supervisory jurisdiction of this
court and his determinations were not "on or
in relation to the trial or proposed trial" of

a person on indictment. He submitted that the

restriction in section 14(3) was limited to

matters which could be the subject of an

appeal to the Court of Criminal Appeal under

Part VI of the Crimes Act and that the

determinations of Mr Justice Ormiston were not

ones from which such an appeal would lie.

Bearing in mind that Mr Winneke is acting for an

accused in putting these submissions.

This preliminary point turns on the

proper construction.of section 14(3) of the

Supreme Court Act 1986. The words "in

relation to" are words of the widest import.

We would, with respect, adopt that proposition.

They should not be read down in the absence of

some compelling reason for doing so.

And we would, with respect, adopt that proposition.

And then the court said:

If those words are given their widest

meaning they would prevent there being any

appeal whatsoever in respect of determinations

which in some way related to a trial or

proposed trial but from which no appeal lies

under Part VI of the Crimes Act 1958. This
would render unappealable many of the
determinations from which Parliament gave a

right of appeal for the first time in 1984.

McHUGH J: Is that a reference to section 10(2)?

MR WEINBERG:  No, it is a reference to the forerunner of

section 10(2), which was section 42 of the Supreme Court Act which was introduced in 1984. It is the

other section that I invited the Court to have

regard to when I opened the submissions in relation

to jurisdiction. And what happened, if I can take

the Court to section 42 of the 1984 Act, that

provided that - it replaced the old section 42 of

the 1958 Act with a section in these terms.

Smith(2) 12 28/6/94

Section 42(1); it is conveniently set out, of course, at page 497 of Boehm's case:

(1) Any single Judge sitting in Court may

hear and determine all motions, causes actions matters and proceedings not required under any

Act or Rules of Court to be heard by the Full

Court.

(2) Unless otherwise expressly provided by

this or any other Act an appeal shall lie from

any determination of a single Judge sitting in

Court to the Full Court.

GAUDRON J: Now that was introduced, was it, in part at

least, to overcome the problem which used to exist

about proceedings in the nature of prerogative

relief from magistrates?

MR WEINBERG:  Yes, Your Honour, in part for that purpose.

If one goes to the debates, one sees a lot of talk

about contempt. What was causing the problem was

that if a person was found to have committed a

contempt of court by a judge, the only place that

one could come was to the High Court by way of

special leave. There was no opportunity to bring
an appeal against that decision to the Full Court,
and I think one of the cases referred to is a case

of Keeley, which came to this Court bypassing the

Full Court, because there simply was no appeal to

the Full Court.

So, section 42 was introduced to widen the

avenues of appeal. There is no question about that

and no dispute about that, but what we say is that
it was not introduced for the purpose of allowing

holus-bolus a whole range of determinations by

trial judges, made in the course of conducting

criminal trials, to be appealed, as it were,

collaterally, to the Full Court. The last thing

that Parliament ever intended, and one finds no

support for that interpretation at all in the

debates, all that one finds in the debates is a

very modest extension of the rights of appeal in

some criminal or quasi-criminal matters intended by

section 42 as amended.

For example, another example that one can find

is a refusal of habeas corpus. There was no appeal

to the Full Court from a single judge's refusal to

grant habeas corpus. There is authority for that

proposition. That might well be a matter that

would now, as a result of the amendment of section

42, be the subject of an appeal, but certainly

there is nothing to suggest that, for example, the

Crown should now have a right to appeal against

determinations made by trial judges in the course

Smith(2) 13 28/6/94

of trials on indictment which displease the Crown.

For example, a ruling on separate trials or a

severance of counts or the exclusion of evidence or

any of these matters are perfectly capable of being

described as determinations by judges within the

meaning of that term under section 42(2) or,

indeed, under section 10(2), and what we say, at
the end of our argument, is that the effect of the

decision in Boehm in those two sentences or two

passages at page 502 is really to open a very wide

range of avenues of appeal for the Crown in

circumstances where no such construction should be

put upon these provisions as giving rise to that

result.

But corning back to page 497, in Kean and Mills

which is referred to at that page, again we had an

accused who was unhappy about a decision by a trial

judge. Mr Justice Fullagar in the supreme court

refused to quash a presentment and he sought to

appeal to the Full Court and the Full Court held

that the section - that is section 42 as amended:

did give a right of appeal where none existed

before -

that is line 21 -

but did not give a right of appeal in cases

where such a right was already given by

Part VI of the Crimes Act 1958.

So, when the court construed section 42(2), it construed that section as being limited by the

principle that if you have already got an

alternative remedy available to you under Part VI,

you cannot use the new section 42 provision, it is

to be read down in that way. There was nothing

in -

DAWSON J:

It would not give you the same right of appeal,

would it?

MR WEINBERG:  It is not the same right of appeal,

Your Honour, no.

DAWSON J:  Except that you have to wait to the end of the

trial and then pursue your remedy.

MR WEINBERG:	Yes, Your Honour, and it is before a different court, at least notionally. It is the Court of
Criminal Appeal rather than the Full Court in its
civil jurisdiction, and your grounds of appeal would be different and you would have to bring them
within sections 567 and 568 of the Crimes Act, and matters of that kind.

Srnith(2) 14 28/6/94

DAWSON J:  So that it would be, where the question related

to the trial, you had your appeal under Part VI at the end of the trial and conviction, that was what they were talking about.

MR WEINBERG:  Yes, Your Honour, there was an alternative

remedy in the sense that you could wait until after

you were convicted and then you could appeal

against the miscarriage of justice if it became

necessary to do so because you had been convicted.

If you were acquitted, of course, the matter was

moot.

MASON CJ:  Mr Weinberg, we will take this matter up further

tomorrow, but can I just ask you, what is the

subject of the reference at the top of page 498,

where there is a sentence:

It was said that the purpose of the new

section 42 was to give a right of appeal from

a decision of a single judge - - -

MR WEINBERG:  It is a reference to one line in the

parliamentary debates, Your Honour; I will take the

Court to that tomorrow.·

MASON CJ:  Very well. Mr Meagher, can I ask you how long

you think your argument on the jurisdictional

question will take?

MR MEAGHER: Half an hour.

MASON CJ:  We will resume until 10.15 am tomorrow morning.

AT 4.42 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 29 JUNE 1994

Smith(2) 15 28/6/94