The Queen v Puckeridge

[1999] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S21 of 1999

B e t w e e n -

THE QUEEN

Appellant

and

ROY ROBERT PUCKERIDGE

Respondent

GAUDRON J
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 30 SEPTEMBER 1999, AT 10.20 AM

Copyright in the High Court of Australia

MR N.R. COWDERY, QC:  May it please the Court, I appear with my learned friend, MR A.M. BLACKMORE, for the Crown which is the appellant in these proceedings. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR G.P. CRADDOCK:  If the Court pleases, I appear for the respondent. (instructed by Ms C. Hunter).

GAUDRON J:   Mr Cowdery.

MR COWDERY:   If your Honours please, the grounds of appeal are set out in the Crown’s notice of appeal by his submission dated 24 September 1999.  The appellant concedes that the Crown is entitled to the relief sought.  In our submission, that concession is entirely appropriate for the reasons set out in our written submissions and, accordingly, your Honours, we would ask that the Court make the orders sought in the notice of appeal.

McHUGH J:   I appreciate the power of the argument in favour of setting aside the conviction, but I do not know that we can really act in such an important matter on the concession of the counsel for the accused.  I think we owe a duty to form an independent assessment in the matter.  Subject to what others think, it may mean that we go over it shortly, but it does seem to me ‑ ‑ ‑

GAUDRON J:   I think you should deal with the point at least briefly, Mr Cowdery.

MR COWDERY:   If your Honours please, certainly.

KIRBY J:   Very briefly will do me.

MR COWDERY:   Certainly.

MR COWDERY:   Certainly, your Honour.

McHUGH J:   And me.

MR COWDERY:   Your Honours, the grounds of appeal are directed towards the finding by the Court of Criminal Appeal that there was no case to go to the jury on the issue of the causation of the death of Mrs Thomas.  The Court of Criminal Appeal upheld the present respondent’s appeal on the basis that there was no evidence that the actions of the accused, the present respondent, caused that death, fit to go for consideration by a jury.  In our submission, that finding is not supportable and I take the Court to the summary of argument contained in our submissions dated 21 September.

In paragraph 2 of our summary of argument we set out the authority provided by the decision in Doney v The Queen, which stated, amongst other things, that:

a verdict of not guilty may be directed –

that is at the end of the Crown case –

only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

KIRBY J:   Do you think that the Court of Criminal Appeal was confusing, on the one hand, no evidence and therefore a verdict by direction; on the other hand, this is not a case where a jury ought reasonably to have convicted?

MR COWDERY:   It would appear on our understanding of the judgments, your Honour, that the Court of Criminal Appeal applied at the end of the Crown case the test that was properly to be applied by the jury at the end of all of the evidence, and weighing up the competing hypotheses.  So that the Court of Criminal Appeal ‑ ‑ ‑

HAYNE J:   And did so by taking Professor Ellis’s evidence in isolation from all other evidence in the trial.

MR COWDERY:   Indeed.

McHUGH J:   I do know what view could be expected to be taken in criminal cases if the body had been buried for so long that it was impossible to say anything about the cause of death.

MR COWDERY:   Or, indeed, your Honour, if there were no body.

McHUGH J:   Yes.  And, indeed, many ways ago I was in such a case where the person had been buried under a slab of concrete for a considerable time.

MR COWDERY:   It is quite erroneous to assert that the Crown must establish beyond reasonable doubt the precise cause of death.

McHUGH J:   The cardinal error, with respect, seems to me to appear at 393 in the judgment, line 6, where they say:

However in this case, absent evidence from him, there appears no other source from which a definitive finding that the act of the accused caused the death could be made.

MR COWDERY:    Yes.  That, in our submission, is just simply wrong.  That the court is obliged to look at all of the evidence and there was a good deal of other evidence that could be properly taken into account and, indeed, ultimately it would appear was taken into account by the jury.

Your Honours, we rely on the submissions contained in our written document.  The facts are outlined from page 2, and the evidence supporting those assertions of fact, and our argument appears from page 4, paragraph 16 of the submissions.  The test for a directed verdict is dealt with from paragraph 20 on page 5.

KIRBY J:   On the question of the suggested misdirection, do you accept that the Court of Criminal Appeal, in the conclusion to which their Honours came, did not ultimately consider that submission?

MR COWDERY:   That is so, your Honour.

KIRBY J:   In other words, we could not simply restore the verdict of the jury and terminate the matter.  That issue, if it has not yet been disposed of, has to be considered and determined by the Court of Criminal Appeal.

MR COWDERY:   We make alternative submissions in relation to that, your Honour.  The first submission is that on the submissions that we have provided to this Court by reason of the way in which the matter developed during the special leave application and by reason of our being on notice from the respondent of that issue still being a live issue, we would rely on those written submissions on that point.

GAUDRON J:   But why should we deal with it, really?

MR COWDERY:   Precisely, your Honour.  The alternative submission is that if this Court is not satisfied that it has a proper basis on which to act now on that issue, then that should be remitted to the Court of Criminal Appeal.

GAUDRON J:   We do not have the analysis of the Court of Appeal, have we?

MR COWDERY:   No.

GAUDRON J:   We would have to do it for ourselves.

KIRBY J:   And we would be depriving the respondent of a right of application for appellate review, which is an important right.

MR COWDERY:   And, indeed, the Crown, your Honour.

KIRBY J:   Yes.

MR COWDERY:   Both parties.

KIRBY J:   That is true.

MR COWDERY:   Yes.

KIRBY J:   But I am thinking on the hypothesis that the verdict is restored.  Then you deprive the respondent of that right of appellate review.

MR COWDERY:   Yes, because those grounds were not fully argued in the Court of Criminal Appeal and the judgments there do not deal with them.

GAUDRON J:   Yes.  I think we need not trouble you further, Mr Cowdery.

MR COWDERY:   Thank you, your Honour.

GAUDRON J:   Mr Craddock, what do you say about the misdirections?  I presume you do not wish to say anything further on the main issue?

MR CRADDOCK:   On the principal issue, the only thing that I would say is to tell your Honours that I heard only after the appeal something that I wish I had heard before the appeal, and it was an anecdote about an English advocate who was faced with an enthusiastically interventionist Bench which led him to say to his Honour, “Your Honour, I don’t mind you arguing my appeal, but for heaven’s sake don’t lose it.”

More than that I do not really wish to say about the principal ground.  When I make that observation your Honours would have noticed, both in the judgment of the court and in my friend’s submissions at paragraph  16, that it was only after what appeared on a reasonable view to be a fairly well formed view by at least the majority of the court that counsel, I suppose I could say, succumbed to the indication that a further ground might be added.

McHUGH J:   Yes, well, I hope you do not meet my subsequent fate.  I once, in fact, begged a judge not to decide a case in my favour on a particular point but to deal with it on another point, and he decided in my favour on that point and I inevitably lost it in the Court of Appeal and I could not get the Court of Appeal interested in the other point at that stage.

MR CRADDOCK:   Yes, well, I hope I do not meet that fate.

KIRBY J:   Though we jest about this, this is a serious matter.  A person has been murdered ‑ ‑ ‑

MR CRADDOCK:   Quite so.

KIRBY J:   - - - or has died and in circumstances where - well, I will not say any more because you are entitled to have the Court of Criminal Appeal deal with it but she thought your client was a ghost.  He was no ghost.

MR CRADDOCK:   Well, that was one version of the admissions but, no, your Honour, I do not take the matter lightly at all.

GAUDRON J:   You do not object to the matter being remitted to the Court of Appeal for it to determine the grounds of appeal not dealt with by that court?

MR CRADDOCK:   I do wish to say something about that but first of all, just for the purpose of assisting your Honours, we say that the error in the court’s judgment is that encapsulated in ground 2 of the notice of appeal.  We make that point at paragraph 13 of our written submissions on the basis that whether there was evidence capable of satisfying the jury was a question of law and the evidence was so capable because their Honours left out of account the capacity of the alleged admission by the respondent together with evidence which could have established the necessary temporal connection being before the jury and capable of acceptance by them.

However, so far as the judgment of the court is concerned, it is our principal submission that their Honours did deal with the original grounds, they referred to those grounds firstly at page 394 and set out the passage which was complained of ‑ ‑ ‑

KIRBY J:   I do not quite understand this; are you saying that you accept that the Court of Criminal Appeal dealt with all of your grounds and you do not want the matter to go back to the Court of Criminal Appeal?  Because, if there is a misdirection, the proper order is for a new trial; it is not for an acquittal, therefore you cannot hang on to your order acquittal.

MR CRADDOCK:   No, precisely; that is what we say.  We say that the Crown is entitled to relief, but the proper order is that there be a new trial.

KIRBY J:   But why should we order that as distinct from leaving it to the Court of Criminal Appeal to dispose of all of the matters that were before it which, on one view, it did not have to dispose of, given its primary conclusion.

MR CRADDOCK:   Well that is so.

GAUDRON J:   What the court did, in effect, was to say, it considered that the evidence did raise the issue and does suggest an available approach by the jury, but for the reasons already given, which seem to relate to the principal one, it was not open to be left to the jury ‑ ‑ ‑

MR CRADDOCK:   Well, the construction of that is that the original grounds were only for a new trial; they could not possibly result in an acquittal because, whilst they inevitably led to the appeal being upheld, there was no basis for doing other than ordering a new trial.  We say that it is for that reason that the court did not then proceed to order a new trial, because such an order would be futile.  Their Honours indicated that those directions amounted to a misdirection; the only step that they have not taken is to formally order a new trial, the simple reason being that that would be a futile order.  That is our principal argument.  If your Honours ‑ ‑ ‑

GAUDRON J:   It is not for us really to say simply whether on their reasons a trial should or should not be ordered; it is firstly whether they did deal with it fully and secondly, if they did, did they deal with it correctly, but, prima facie, it does not seem to have been dealt with fully, does it?

MR CRADDOCK:   That is a difficulty that we face.  I do not wish to say anything more about that.  In our written submissions at paragraph 19 we indicated that our primary submission was that there be a new trial ordered but, in the alternative, that the matter be remitted.  Unless there is some further matter that I could assist the Court with, those are our submissions.

HAYNE J:   Could I just ask you, Mr Craddock, if we were to send it back to the Court of Criminal Appeal, exactly what form would that order of remission take, given that the order that would be set aside is an order directing entry of verdict of acquittal?  Would we in our order have to take any note of that order and the consequential orders that seem to have been made by the Court at 399 of the appeal book where there seems to have been some application by the prosecution to stay the consequences of the entry of verdict of acquittal and a refusal of that?  Are those matters that we have to take to account in any way in our order?

MR CRADDOCK:   Not in my submission, your Honour.  Those applications for stay and so forth have been dealt with by the Court of Criminal Appeal.

HAYNE J:   Yes.  Is it enough, then, if we were to order, in effect, appeal allowed, set aside the order of the Court of Criminal Appeal in so far as it disposed of the appeal to that Court, remit the matter to the CCA for further consideration of the appeal on grounds other than ground 4 in the amended notice?  Would that meet your case or your position sufficiently? 

MR CRADDOCK:   I believe it would, your Honour.  There is no further consequential order that occurs to me to be necessary.

HAYNE J:   The question is a genuine question, not a statement in the form of a question from me.  It just occurred to me that there may be ‑ ‑ ‑

MR CRADDOCK:   I understand that, but nothing occurs to me at the moment as to any further consequential order  ‑ ‑ ‑

KIRBY J:   Are there not two steps?  The first is the normal reticence which a court would apply to any order that, in effect, sets aside a judgment of acquittal.  This Court has said in a number of decisions that you approach such an order with care because you are setting aside an order of acquittal.  But once you reach the view that that has to be done with a matter which is still before the court process, then the formal order is simply the ordinary one that would be made setting aside the order of the court below.

MR CRADDOCK:   Together with the remitter.

KIRBY J:   Yes.  It may be as well that the  ‑ ‑ ‑

MR CRADDOCK:   Approaching such a matter with all due care, in terms of the reticence to set aside an acquittal, there is no factor that I can put  ‑ ‑ ‑

KIRBY J:   Yes.  I assume you had the opportunity of a conference with your client before the submissions were placed before this Court.

MR CRADDOCK:   I have instructions.  But there is no matter that I could put to the Court, going to the Court’s discretion to  ‑ ‑ ‑

KIRBY J:   No, that is very proper and responsible, and that is what the role of the Bar is and should be.  It is not always.

MR CRADDOCK:   It certainly shortens arguments sometimes.

GAUDRON J:   Yes, well, certainly the Court has on former occasions made orders setting aside orders quashing a conviction.  It happened in Benz.

McHUGH J:   In Benz.  We did it in relation to the mother in Benz.

KIRBY J:   Yes, there is a long judgment of Justice Deane which explains what should be done.

MR CRADDOCK:   Yes, I am familiar with Benz.  Were there a discretionary factor which might potentially dissuade your Honours from granting that particular relief, I would be obliged to tell your Honours about it, but nothing springs to mind, I am sorry on my client’s behalf, to say.

GAUDRON J:   Yes, thank you, Mr Craddock.  I do not think we need to hear from you in reply, Mr Cowdery, do we?

MR COWDERY:   Thank you, your Honour.  Could I just put on record the fact that the Crown would consider it appropriate that a Court of Criminal Appeal differently constituted deal with the matter when it is remitted, but I do not think that is a matter that this Court needs to concern itself with.

McHUGH J:   No, it is not our practice.

GAUDRON J:   That is a matter for the Court of Appeal itself.

MR COWDERY:   Indeed, I simply wanted to indicate that for the record, so that there can be no misapprehension later. 

GAUDRON J:   Yes, thank you, Mr Cowdery. 

For reasons which will be given in due course, the Court now orders that:

(1)  That the appeal to this Court be allowed. 

(2)  Set aside the orders of the Court of Criminal Appeal of New South Wales made on 2 November 1998 to the extent that those orders allowed the appeal to that court, quashed the conviction and sentence, and directed entry of a verdict or judgment of acquittal on the indictment for murder. 

(3)  Remit the matter to the Court of Criminal Appeal for the further hearing and determination of the appeal to that court on grounds other than ground 4 in the amended notice of appeal.

KIRBY J:   You do not want us to do anything in relation to the consequences that may flow from those orders for the custody of the respondent?

MR COWDERY:   No, your Honour, it can be dealt with otherwise.

GAUDRON J:   Thank you, gentlemen.  The Court will now adjourn.

AT 10.41 AM THE MATTER WAS ADJOURNED