Thornberry v The Queen

[1995] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S60 of 1995

B e t w e e n -

STEPHEN THORNBERRY

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 SEPTEMBER 1995, AT 11.56 AM

Copyright in the High Court of Australia

MR T.A. GAME:   If the Court pleases, I appear for the appellant.  (instructed by T. Murphy, General Manager, Legal Aid Commission of New South Wales)

MR R. KELEMAN:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases, I have an outline.  If I could hand that to the Court?

BRENNAN CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  Shortly before lunch on 26 August 1993, counsel sought an adjournment until 9 o’clock the following morning to call two alibi witnesses, Brenda and Sandra Warrender.  That application was refused and the refusal of that application and the consequences that flow from it are the subject matter of this appeal.  There had been two previous applications for adjournment of the trial made, firstly, on the Monday, the 23rd - to be correct, there were three because there were on the 24th.  Application had been made on the afternoon of the Monday, 23 August, which the court had been made aware of on the Friday after a fax had been received from the doctor, that is 20 August, and then two applications had been made for adjournment on 24 August and they had been refused.

Now, if I could take the Court directly to the reasons for refusal of the adjournment by the trial judge.  They appear at pages 25 and 26 of the appeal book, and particularly at page 26, his Honour the trial judge said at line 5, “It turns out that no subpoenas were served on them” - I will come back to this in a moment, but he was not informed fully as to what counsel had done and why he had done it, which was he had taken a chance on the prospect that he would be able to call the witnesses on the Friday morning.

Six Crown witnesses in fact were called on the Thursday.  The accused had made his unsworn statement and called one alibi witness, which was his wife.  So the case had moved very quickly to say the least.  Just proceeding along there:

It turns out that no subpoenas were served on them, this is notwithstanding the fact that it was known to those representing the accused that on Monday and Tuesday of this week that those ladies were at least contemplating going to Sydney.  I indicated for detailed reasons on two occasions on Tuesday that the time comes when a court has to balance the business of the court on the one hand and the desires of witnesses on the other to undertake other activities.  It is appreciated that there comes point of time when coming to court is inconvenience, and unfortunate and may prevent a person doing something else that person would like to do.  But the court has to make a balance.  The court did consider the matter on Tuesday on two occasions, and having don so I see no reason to alter what I said on Tuesday.

Now, in my submission, there is a fundamental misconception in that passage, because the balance which his Honour had in mind was a balance which might have been conducted in relation to the question which he earlier addressed, which was the balance between the witnesses cancelling their appointment in Sydney and the case being adjourned. 

It would appear that either the trial judge misunderstood or was not fully informed as to how important it was that those witnesses attend in Sydney, but in any case, by the time he came to consider the question on Thursday lunchtime, the question became a simple question of an exercise of discretion in circumstances where a serious injustice would flow to the accused if he did not call his two witnesses, in which there was no suggestion of any prejudice to the Crown and in which at highest it could be said that there might be some inconvenience to the court and there was a suggestion of a possibility that if the case did not finish that week there would be some inconvenience to the judge who had some other arrangements or some other obligations in Sydney the following week.

DAWSON J:   Does that appear in those terms?

MR GAME:   It is said, your Honour, at page 4, line 10, of the transcript by his Honour:

I don’t want to start a case and then end up getting part heard next week because there’d be, there are some practical difficulties about that.

DAWSON J:   That is the extent of it?

MR GAME:   Yes, but they did start the case early for some reason on the Thursday.  They started it at 9.30 on the Thursday and the jury were brought back early on the Friday morning, and there was a discussion about the number of witnesses.  The Crown then said at page 4 there were six witnesses ‑ six witnesses were called; four on the Thursday and the unsworn statement and Mrs Warrender who gave the alibi evidence.

Now, in my submission, the error which is identified at page 26 really explains where the trial judge went wrong, but if I could just take the Court back to some other passages.  At page 23, line 15, he said:

Now application was made on Monday, repeated Tuesday morning, repeated Tuesday afternoon, there is no reason whatsoever, why in my view those two ladies could not be here today, and it was on that basis that I rejected the application for adjournment.

Now, really, the trial judge had been told, in one form or another, in my submission, all that really needed to be conveyed to make it quite clear that this was really a very critical medical appointment which Mrs Warrender senior and her daughter and the child had to attend, and if one goes to what was actually said, firstly at page 2 of the appeal book, there is a long passage there which I will not read out, but counsel lays it out as to what the nature of the problem is, and then he tenders, at the bottom of page 2, the medical certification from the doctor and the contents of it appear in the appeal book at page 32, lines 30 to 40.  The doctors described it as an appointment for:

urgent adjustments to her Isocentric Reciprocating Gait Orthosis.  These adjustments are deemed necessary for Alyce to permit better bowel and bladder drainage, through prolonged standing and walking, all important to a young patient who suffers from spina bifida.

Now, then if one turns to page 8 of the appeal book - and this is the second application which was made - the solicitor appearing then said at line 20 that “there would be great difficulty” in changing the appointment.  The clinic specifically brought for 26 August.  Line 26:

other carers, such as her mother and her grandmother will also be there.....arranged for some considerable period ‑ ‑ ‑

Line 42, and this is the solicitor relaying what he has heard from the doctor:

he said that the crucial nature of the treatment to the child’s longevity to the child’s psychological well‑being and to the well‑being, psychological well‑being of the carers, being the mother and the grandmother is such that he would be loathed for them to miss the appointment or to have change it.  Well he is unable to change it because there are persons from all over the state attending.

Then there is another passage there which goes a little bit further at lines 10 to 15.

TOOHEY J:   Mr Game, I understand why you are taking us to this evidence, but in a sense the whole crux of the matter is whether an adjournment should have been granted at lunchtime or thereabouts until the following morning.  Do the papers indicate what was the likely prospect of the trial finishing on the Friday?  From what you have said these two witnesses remained to be called.

MR GAME:   Yes, that was addressed in the Court of Criminal Appeal.  I do not have a page reference for that, but in the Court of Criminal Appeal - yes, it is at page 42.  Your Honour, if I could just go back.  The reason why I was doing that was to show that there was an error in the reasoning on the basis of what the trial judge had before him before I proceeded to other consequences that flowed in the other material.

TOOHEY J:   Yes, I understand that but I was wondering what - in a sense the new situation had arisen on the Thursday afternoon in that no adjournment was being asked of the trial, but that the trial itself be adjourned for a short time.

MR GAME:   At page 42, the question was addressed by the Court of Criminal Appeal:

If the Court sat at 9.30 on Friday, as it did, their evidence would probably have been completed by 11 am to 11.30 am.  The addresses and Summing Up would probably have been completed by 2.30 to 2.45 pm.  These estimates are approximations.  The case should have finished on Friday but there was a risk that it might not.

In the Court of Criminal Appeal, one sees firstly the report of Dr Cole outlined at page 40 ‑ - -

DAWSON J:   Well now, how did this evidence get in?

MR GAME:   Sorry?

DAWSON J:   How did this additional evidence get in before the Court of Criminal Appeal?

MR GAME:   It did not.

DAWSON J:   What?  What are we being referred to it for then?

MR GAME:   It was rejected, but your Honour, in my submission ‑ I would make one comment immediately which qualifies what I have to say which is that, in my submission, really the trial judge had been told all that he needed to know.

DAWSON J:   I was going to say, it does not add much.

MR GAME:   There is really only one further thing.  In paragraph 5 it says the “device could lead to bowel and bladder infection”.  Well, that was not specifically said but one could infer that it was pretty clear that they were urgent and necessary adjustments for a child who had no lower spine.  Then, at paragraph 8 it said, “These clinics convened at three monthly intervals”.  Your Honour, so I predicate what I am about to say on the assumption that it really did take the case further which seems to be the assumption made in the Court of Criminal Appeal.  In my submission, if the judge was not fully informed as to the nature of the problem, then that material would be receivable by the Court of Criminal Appeal.

DAWSON J:   How?

MR GAME:   Your Honour, it would be receivable to demonstrate error had occurred in the discharge of the exercise of discretion.

DAWSON J:   What error?

MR GAME:   The error in refusing the adjournment.

DAWSON J:   But the judge must proceed on the materials before him.

MR GAME:   Quite, your Honour, but one can demonstrate error by demonstrating that the facts which are placed before the judge are not the true facts and, in my submission, no rigid ‑ ‑ ‑

DAWSON J:   I do not know that you can.

MR GAME:   Well, from a practical point of view, it happens all the time when one is demonstrating errors in exercise of discretion by trial judges if the judge is not properly informed as to the facts which are the basis of the application.  In my submission, it is a simple application of demonstrating error in the House v The Queen sense.

TOOHEY J:   Do you mean “not fully informed” or “misinformed”?  There may be a difference.

MR GAME:   Your Honour, this is not a particularly good context for arguing the point because the evidence is so marginally different, but if the evidence is of sufficient significance to make it clear that the judge fell into error, then the material should be received.

DAWSON J:   That would be to show that counsel were in error. 

MR GAME:   Your Honour, it would amount to the same thing because if you demonstrate that counsel were in error - - -

DAWSON J:   The judge fell into error merely because he was misled or whatever it might be, but you do not need to rely on this in this case, do you?

MR GAME:   No, I do not, your Honour. 

DAWSON J:   We are having an argument for - - -

MR GAME:   That is why I say it is not a particularly good - - -

BRENNAN CJ:   But there should be no misunderstanding that the responsibility for the presentation of a case rests on counsel.

MR GAME:   Yes, your Honour.

BRENNAN CJ:   And nothing that comes from this Court ought to give any impression that errors on the part of counsel can be picked up and remedied in courts of appeal.

MR GAME:   Well, your Honour, one of the errors that counsel made in this case was described as a serious error by the Court of Criminal Appeal.  And if a serious error is made which has the consequence that the witnesses - - -

BRENNAN CJ:   But that was the failure to issue subpoenas, was it not?

MR GAME:   It was the failure to issue subpoenas but it was the failure to tell the judge that he had not taken any steps to ensure that the witnesses be present, that he had taken the chance that they would be back on the Friday.

McHUGH J:   But this only demonstrates, if what you say is correct, that the trial judge made no error and when you rely on external material or extraneous material like this, what you are saying is that there has been a miscarriage of justice in the circumstance of the case.  It has got nothing to do with the judge, in effect.  He made no error.

MR GAME:   Your Honour, in the Court of Criminal Appeal the argument was put in that way in the alternative.  In fact, the grounds of appeal which appear in the appeal book - only one is recited.  In fact, the grounds were amended.  If I could hand up the grounds that were actually argued in addition.  So it was argued on the broader basis to which your Honour refers.

DAWSON J:   Yes, but the difference between what appears on page 40 and what the judge was told, you would concede, is so slight as really not to affect the outcome.  That is just a personal viewpoint.

MR GAME:   Yes, it could not make any difference at all in my submission, your Honour, but the point is in the Court of Criminal Appeal the court appears to have taken the view that the material was of some significance, that it took it substantially further.  But, as I say, it does not seem that that part of it makes any difference.  But what is described as the serious error of judgment of the solicitor which is referred to at page 42, line 11, and then at page 47, line 14:

The judge was never told that the appellant’s solicitor had taken a risk on the other evidence occupying all of 26 August 1993 and on being able to obtain an adjournment if the other evidence was completed earlier.

If the solicitor did make a ‑ ‑ ‑

BRENNAN CJ:   It is patently obvious, is it not?  They were not there.  They wanted to be called; they wanted to be called the next morning.  Of course they had taken the punt on it  What other explanation is there of the facts?

MR GAME:   There can be no other explanation except that the solicitor was the person who was effectively taking responsibility for saying - he understood how important the medical appointment was, they understood how important the medical appointment was.

BRENNAN CJ:   The notion that it is a serious error of judgment to have failed to have issued a subpoena to prevent these two women attending this child on a medical appointment of this kind strikes me as a rather curious evaluation.

MR GAME:   But, your Honour, it is no part of my argument to seek to support the proposition that it was a serious error of judgment.  It is my argument that it was perfectly understandable what he did, but all I am seeking to do is to identify what the reasoning was both of the trial judge and of the Court of Criminal Appeal and identify what, in my submission, are the erroneous approaches taken by each to the question.

In fact, it is hard to imagine that the solicitor could do anything else in the circumstances but take the risk that he would be able to get them back on the Friday morning.  He was not in any position to subpoena them to attend.  He was not in any position to stop them from going to Sydney for the medical appointment.  Really, however one approaches this case, it comes down to the fact that the judge was told fully that for urgent and unavoidable reasons, two witnesses could not be there on Thursday.  The solicitor had understood the position perfectly well.

There is no reason in the world identified why the case should not be stood over for two hours on the Thursday until early Friday morning, when the only identified possible inconvenience to anybody was that the case would maybe have to go on on the Monday of the following week.  In my submission, there is not one single matter which is identified as weighing against the proposition that the trial judge fell into error when he refused that application on the Thursday lunchtime.

When the Court of Criminal Appeal said at page 44 that “there were substantial competing considerations”, it is not clear what those competing considerations might be.  I have already taken the Court to what the balancing exercise was which related to another matter.  In the appeal book at page 34, line 40, the judge:

was concerned about the efficient despatch of Court business, the loss of valuable Court time, the inconvenience to witnesses, the expense of postponing a trial and the need for finality.

Well, in my submission, none of those things in the circumstances could have amounted to relevant competing considerations.

McHUGH J:But why not?  I mean, the judge wants to take it into account.  He has got a jury there; they may have to come back the following week.  I mean, it might be a tough call and many, perhaps most, judges would have granted the adjournment, but where is the error on the part of the judge?

MR GAME:   Your Honour, in my submission, it is a wrong call to prevent an accused person calling his two witnesses who establish his defence.

McHUGH J:But you have got to look at all the circumstances.  The judge offered to sit on the Wednesday.

MR GAME:   Well, your Honour, that could not have occurred because that would have been in breach of section 405 of the Crimes Act.

McHUGH J:   That rule can be relaxed by a consent of the parties.

MR GAME:   But it does not say that in the section, your Honour.

BRENNAN CJ:   What section is that?

MR GAME:   Section 405.  It has been repealed now, but:

Every accused person on his trial, whether defended by counsel or not, may -

make any statement at the close of the case for prosecution and before calling any witnesses in his defence.

DAWSON J:   It has been repealed, has it?

MR GAME:   It has been repealed now, yes.  The right to make an unsworn statement has been repealed in New South Wales.

DAWSON J:   Of course.

MR GAME:   There is also section 402, which is relevant, which comes from the 1836 Felons Act, which was considered in a different context by this Court in Dietrich.  The right to a fair trial, in my submission, must include the reasonable opportunity to call witnesses and if an accused person through no fault of his own, and it was through no fault of this accused person ‑ ‑ ‑

McHUGH J:At least there is a technical fault on the part of his legal advisers; they did not have a subpoena issued.

MR GAME:   But your Honour, how could one, out of any sense of humanity ‑ ‑ ‑

McHUGH J:That is a different question.

MR GAME:   No, your Honour, it is precisely the question.  It would be quite inhumane for a solicitor to subpoena two people who he knows have to be in Sydney for an urgent appointment for the daughter of one of them, both of them have to be there.  He will prevent that from taking place in the name of a curial process.

In my submission, that would be quite inhumane and there could be no justification for it, and he made the right judgment in the circumstances and the Court of Criminal Appeal was wrong when they said that he made a serious error of judgment.

DAWSON J:   There may have been some practical difficulties in serving the subpoena, at least on the Wednesday or the Thursday.

MR GAME:   Yes, I agree, quite, your Honour, but subpoenas, in any event, are things that you use to compel unwilling witnesses in these circumstances, not to prevent ‑ ‑ ‑

DAWSON J:   Well, they are unwilling witnesses in one sense.

MR GAME:   Well, they knew how important, obviously ‑ ‑ ‑

BRENNAN CJ:   Well, put it to this test:  if the subpoena had been served and an application had been made on behalf of the witness to be relieved from the obligation of the subpoena until the following morning, would that application have been successful?

MR GAME:   Well, it must have been.

BRENNAN CJ:   In my mind there is only one answer that could be given to that.

MR GAME:   It must have been successful.  They were not unwilling to come to court.  They were unwilling to come to court on Thursday, or unable to come to court on Thursday.  They were quite willing to come at any other time. 

If I could just come back to the matters raised by your Honour Justice McHugh:  in my submission ‑ there must be some qualification upon it; there must be a reasonable right to call witnesses but, your Honour, you cannot weigh up the possibility that the jury will have to be brought back on Monday the following week with the right of an accused person, which is both a right of natural justice and statutorially enshrined by section 402, to have the reasonable opportunity to call witnesses in their defence.  These witnesses were his defence.  They were the alibi witnesses who established that he was at home at the time of the robbery, and if their evidence were accepted, or if the jury had a reasonable doubt about it, there could be but no question but that he would be acquitted ‑ ‑ ‑

McHUGH J:   What do you say about the fact the substance of their evidence got before the jury anyway?

MR GAME:   Well, your Honour, the substance of ‑ ‑ ‑

McHUGH J:   It might have been the best way to get it before the jury.  They did not have to undergo a cross-examination.

MR GAME:   Well, your Honour, what that amounts to is this:  counsel is afraid that he is not going to get the adjournment.  He has made two previous applications, so he takes a precaution, and the precaution he takes is to cross-examine the police officer in relation to what they have said.  Now, that is an entirely different thing than seeing the witnesses and then having to be satisfied beyond reasonable doubt that those witnesses are lying in order that you convict the accused.

McHUGH J:   Well, that is one way of looking of it, and if they are impressive witnesses, it is a good argument.  The other way is that you have got the evidence and you get the benefit of it, they do not face any cross‑examination.

MR GAME:   But, your Honour, the right is to call witnesses.  The right is ‑ it is, to say the least, second best to cross-examine a police officer on what Mrs Warrender senior and her daughter had to say, and the jury might have thought when they saw Mrs Warrender senior, that her evidence was absolutely critical, because she puts the appellant at home at the very time at which the robbery was said to take place, and she is more distant in terms of independence than the accused’s wife, who was called, and who herself was listening to the police scanner and the jury might have had some concerns about - they obviously did - her evidence, but the actual having of the witness along to give evidence, to be tested on their evidence, and if their evidence is acceptable, the benefit of the test upon their evidence, is an entirely different thing, and have the benefit of a denial by that witness of the falsity of their evidence.  Those are very positive things in an accused’s persons case.

McHUGH J:   It depends on the quality of the evidence.

MR GAME:   But, your Honour, it was not even cross-examined on in the Court of Criminal Appeal and it was accepted as being both material and credible.

The jury were very interested in this; they wanted to hear about the evidence about the times.  It was the questions that they came back and asked.  In my submission, no question could arise of there not been a miscarriage of justice merely by virtue of the fact that counsel, frightened of the consequence that he might be caught without the witnesses’ evidence, cross‑examines Detective Platt on the Thursday morning as to what the police had obtained from those witnesses when speaking to them.  In my submission, that approach can in no way be determinative of this case.  Those really are the submissions in relation to the adjournment point.

DAWSON J:   Are you going to say something about fresh evidence?  What has this case got to do with fresh evidence?

MR GAME:   One might wonder.  The case in the Court of Criminal Appeal ‑ in my submission it is unnecessary to deal with the appeal based on the argument that the evidence should be received as fresh evidence, but ‑ ‑ ‑

DAWSON J:   But, it is not fresh evidence; it never was.  It has nothing to do with fresh evidence.

MR GAME:   Your Honour, in my submission, if it is not shown that the trial judge fell into error in refusing the adjournment, and the case was put on this in this way in the Court of Criminal Appeal and that is rather how it has emerged as an appeal, both against the refusal to grant the adjournment and an appeal based on the evidence.  But the argument goes that the evidence was not reasonably available to the accused.  He made no deliberate choice not to call it; he was seeking to get the evidence before the court.  He was doing all that he could to get it before the Court so that the argument proceeds on the basis that it is not shown that there was an error in relation to the refusal to grant the adjournment, but a miscarriage of justice is shown by reference to both the unavailability of the evidence in a practical sense to the accused and the quality of the evidence.

DAWSON J:   That is nonsense.  You are saying that the Court of Criminal Appeal should admit this as fresh evidence in order to determine the matter.

MR GAME:   Your Honour, it is not nonsense if (a), the - I do not like to be arguing propositions that are nonsense, but anyway if ‑ ‑ ‑

DAWSON J:   It is nearly nonsense.

MR GAME:   I suppose I could say it was argued by other counsel in the Court of Criminal Appeal.  I hope it is not nonsense, but the argument goes that if the trial judge did not fall into error in refusing the adjournment then one is left with the situation where one has the evidence of two credible witnesses which was not got before the court, the question arises as to whether or not under section 6 of the Criminal Appeal Act you can show that otherwise there has been a miscarriage of justice.

DAWSON J:   It was not got before the trial judge because the trial judge refused to grant the adjournment, not because it is fresh evidence.

BRENNAN CJ:   Is this the proposition, that if the trial was conducted according to the law and there was no blemish in the conduct of the trial so far as the absence of an adjournment was concerned, it was not reasonably practicable for the appellant to call this evidence at that trial?

MR GAME:   That is the argument, yes.

BRENNAN CJ:   That is understandable enough, but that is as much as you can say, is it not?

MR GAME:   Quite, and I would once again - it really does not seem that this is an appropriate case to get into arguments about what the test is but, in my submission, the test for determining whether or not there has been a miscarriage of justice would be the test which is applied generally in determining whether or not there is a miscarriage of justice by qualitatively assessing the material and determining whether or not there is a significant possibility that the jury, properly directed, would have acquitted.

DAWSON J:   Really, your case is this man was prevented from putting his defence by reason of the refusal of an adjournment and that is the miscarriage of justice.

MR GAME:   Yes.  My case is really no more or less than that, your Honour, and I have only taken your Honour through both what occurred before the trial judge and in the Court of Criminal Appeal in an

attempt to disclose what the errors were and where they occurred and how the case was put and that is really the argument, if the Court pleases.

BRENNAN CJ:   Thank you, Mr Game.  Mr Keleman.

MR KELEMAN:   May I hand up an outline of argument, your Honours.

BRENNAN CJ:   Yes, Mr Keleman.

MR KELEMAN:   The first submission is that there is no error in the exercise of discretion of the trial judge.  In our submission it is important to acknowledge that a piece of vital information was not before his Honour which may well have made the difference and that is contained in the affidavit of Dr Cole which is set out at page 40 of the Court of Criminal Appeal judgment.  In paragraphs 5 and 6 of that affidavit commencing at line 11 Dr Cole in his affidavit said:

I advised him -

“him” being the legal representative of the appellant -

that is was important that any necessary adjustments be made to the device immediately.  Loss of the use of this - - -

GAUDRON J:   He knew it had to be made urgently?

MR KELEMAN:   The judge was aware that it had to be made urgently.  All I am suggesting here is that - - -

GAUDRON J:   There is not a big difference between “immediately” and “urgently”, is there?

MR KELEMAN:   It may have made a difference to his Honour if his Honour had been aware that the urgency was of an immediate nature.  “Urgent” can mean in the circumstances a number of things.

GAUDRON J:   He knew it was a spina bifida child, a young child with spina bifida.

MR KELEMAN:   Yes.

GAUDRON J:   Now, it is within the ordinary knowledge of any person of any common sense that spina bifida in a young child is a serious condition and if the child lives in the country that there are inevitably going to be requirements to attend to the city for treatment.

MR KELEMAN:   That is so.

GAUDRON J:   And if it is urgent, it is urgent.

MR KELEMAN:   That is so.

GAUDRON J:   And if it is urgent, it is urgent.

MR KELEMAN:   That is so and, in our submission, we would submit that his Honour was conscious of the plight of the child.  In fact, in the first judgment dealing with this matter at pages 16 to 18, his Honour went through all the matters that your Honour has now raised, and perhaps I can take your Honours first to page 16 of the appeal book, line 14.  His Honour referred to the condition of the child as one involving a “degree of tragedy”; that is at line 41.  At page 17, at line 2, his Honour was aware of the need “for urgent adjustments”.

His Honour set out at line 4 and the lines following that he was aware that these adjustments were required for the reasons set out therein.  He was also sensitive to the requirement for both of the carers, the mother and the grandmother, to attend with the child, and that is set out at lines 10 to 20 of the judgment.

TOOHEY J:   Mr Keleman, what concerns me about this sort of exercise is it really has to be seen in the context not of an application to adjourn the trial but an application to stand the matter over for a couple of hours, I suppose, in terms of a working day of a court, but stand it over until the following morning.

McHUGH J:   And that is the vital point, is it not?  In paragraph 1 of your submissions, you overlook one of the grounds for setting aside a discretionary judgment which, in the Coal and Shale Case, Justice Kitto said that:

The result may be so unreasonable, or plainly unjust, that the appellate court may infer that there has been a failure properly to exercise the discretion.

Now, how could this judge, really, in the circumstances, refuse an adjournment for three hours of two alibi witnesses?

MR KELEMAN:   Well, all I can say in relation to that, it was a question of weighing the competing interests and we would submit ‑ ‑ ‑

DAWSON J:   It is not, is it, really.

MR KELEMAN:   I beg your pardon?

DAWSON J:   It is not a matter of weighing the competing interests or there is no weighing process really in these circumstances.  To refuse an adjournment which has the result of preventing a man from putting his defence would be, except in circumstances I cannot imagine, a miscarriage.

McHUGH J:   It does not seem to really matter what the reason; whether the witnesses were not available; whether no subpoena was issued or whatever it is.  In a few hours, these witnesses would be available and the judge refuses.

MR KELEMAN:   Could I deal with that matter in a moment?  May I first just complete, and I will do it very briefly if I may, with your Honours’ permission?

TOOHEY J:   I interrupted you.

BRENNAN CJ:   You take your time now, Mr Keleman.

MR KELEMAN:   I will not take my time; I hope to get through this fairly quickly.  But I would like just to touch upon a matter that I wish to finish.  In relation to Dr Cole’s affidavit, he made the point in paragraph 5 that the urgency was in fact one of immediacy.  In relation to paragraph 6, that is conveyed in a form that again indicates the immediacy of the need, and that is the doctor indicates that a child with spina bifida is capable - her “condition is capable of changing at very short notice, even overnight”.  Those two factors, the immediacy and the possibility of change of condition, were two matters not conveyed to his Honour.  We say on the material before his Honour they were matters that may well have made the difference.

May I now deal with the matter that two of your Honours have raised, and that is whether or not the accused was in fact deprived of being able to maintain his defence.  It is of significance, we would submit, that the alibi evidence was before the court through Detective Platt.  That evidence is extremely significant.  Detective Platt’s evidence is conveniently set out in the Court of Criminal Appeal judgment at page 35 of the appeal book.  May I take your Honours to that.  We would submit that in relation to that evidence and the further material in the affidavits contained in Brenda and Sandra Warrender, there are significant inconsistencies in relation to each witness that the defence got the benefit of through the lack of any challenge to the hearsay alibi evidence given through Detective Platt.

McHUGH J:   Yes, but really this is pushing - if the witnesses are not good, then this is great from the accused’s point of view, but she may have been a very impressive witness.

MR KELEMAN:   This is what I just wish to highlight because if, in fact, there is material on the record which undermines the perhaps reliability of that evidence, then they are matters that one can take into account.  If I can just take your Honours briefly to those, if I may.  Perhaps it might be best to start off at line 25.  This is the evidence of Detective Platt regarding what Brenda Warrender, the grandmother, said to him on about 4 July 1992.  That is approximately three weeks after the commission of the alleged offence and the date upon which it is alleged the accused had an alibi.

Detective Platt said that when he interviewed Mrs Warrender on the afternoon of Saturday, 4 July, she told him that at about 6.55 am on 13 July 1992 she was speaking to the defendant’s wife, Robyn, on the telephone.  She heard a voice in the background which she recognised as Stephen Thornberry’s voice.  She said that Stephen was speaking to one of the children and that she recognised that voice.  She later went to the house at 8.15.  Now, what we submit is significant in that evidence ‑ and this evidence was not, in any way, challenged ‑ was that she was speaking to Robyn, the defendant’s wife.  If I can take your Honours to her affidavit, at pages 62 to 63 in the appeal book at line 39, the relevant portion commences:

At 6.50 am the telephone rang.  I recall looking at the clock to see what time it was because my granddaughter Alyce usually phones me every morning between 6.45 am and 7.00 am.  I recall thinking at the time the telephone rang that this would be Alyce.  I picked up the telephone and said, “Good morning Alyce” and the voice on the other end said, “Nanny, it’s Khalia, not Alyce.”  I then recognized the voice as being that of Khalia my grand daughter.  Khalia said, “Nanny I’m not going to church with you.”  I said, “Why?”  She said, “I don’t want to.”  I could hear her father Stephen John Thornberry say to her, “Who are you speaking to?”  Khalia replied, “Nanna.”  Stephen then said, “If you don’t speak to Nanna properly, I’ll smack you on the arse.”  I then heard Robyn yell out, “Who are you yelling at Stephen?”  Stephen said, “You want to teach her to talk to your mother properly on the phone.”  I heard Robyn say to Khalia, “Tell Nanny to bring me a loaf of bread ‑ ‑ ‑

GAUDRON J:   Well, of course, the detective got the date wrong, in any event.  He may have got more things wrong.

MR KELEMAN:   The detective recorded and made notes in his notebook.  It was not suggested to the detective, in cross-examination, that what he believed he heard from Brenda Warrender was incorrect.

TOOHEY J:   You would really be sticking your neck out if you ask that question in cross-examination, because if the police officer had accepted that, presumably there would not have been a charge.  That was the one question that no counsel dare ask, and of course it also carries this implication, Mr Keleman, that the police officer did not believe what he had been told.

MR KELEMAN:   Well, that is possible.

TOOHEY J:   It is the only conclusion the jury could draw, even without being directed in that way, because otherwise why would the charge be proceeding.

MR KELEMAN:   Well there is no question about that, but with respect that did not play any part in this issue that we are looking at now.  What was important was the material before the jury.  The jury were given this alibi evidence through Detective Platt.  If Brenda Warrender had given evidence the Crown could have cross-examined her on the inconsistency in her evidence and it was a crucial inconsistency because in her ‑ ‑ ‑

GAUDRON J:   There might have been an inconsistency in the detective’s evidence; it is not necessarily her evidence that is inconsistent.

MR KELEMAN:   Well, with respect, that would be entirely speculative.

GAUDRON J:   Yes, well exactly.

MR KELEMAN:   There was nothing to suggest that that was the case at all; there was no evidence to suggest that.

BRENNAN CJ:   This affidavit was not before the trial judge.

MR KELEMAN:   No, but the statements ‑ ‑ ‑

BRENNAN CJ:   The trial judge had evidence from the detective, and so far as the material was before him, the material was as the detective had deposed to it, and the witnesses who could have given the admissible evidence on the subject were the ones that were to be called.

MR KELEMAN:   Certainly, but the evidence was not treated as inadmissible.  The evidence during the course of the summing up ‑ ‑ ‑

BRENNAN CJ:   I am not suggesting it was treated as being inadmissible, but if you are looking at what was before the trial judge you can hardly point to an affidavit that was not before him in order to demonstrate that the trial judge was entitled to take an adverse view of the evidence that was before him.

MR KELEMAN:   But the judge did not take an adverse view.

BRENNAN CJ:   Then what is the relevance of what you have been saying?

MR KELEMAN:   Simply because it was put to me that ‑ ‑ ‑

McHUGH J:   What you were saying was that this alibi evidence is unreliable because of the detective’s evidence, but we cannot make that judgment.  If Mrs Warrender was called, she might say, “I never said any of those things to that detective.  He has made it up.”  So how can you say the evidence that is set out in the affidavit is unreliable?  It may be contrary to what the detective said but that does not mean it is unreliable.

MR KELEMAN:   I am simply pointing to inconsistencies in the material because these were relevant matters for the Court of Criminal Appeal to assess in its consideration of this new evidence question which, I concede, is not a major issue.

TOOHEY J:   I thought you were taking us to those aspects of the matter in order to demonstrate that there was no miscarriage of justice.

MR KELEMAN:   That is part of it.  The Court of Criminal Appeal carried out an evaluation exercise in the context of fresh evidence.  I argue also that in addition to that, this point I raised in relation to the unreliability or the possible unreliability of the evidence is relevant on the matter your Honour has just raised, this miscarriage of justice point, but in the context of the adjournment application, but it is also relevant in the context of the evaluation exercise that is carried out in relation to the cogency or compelling nature of the fresh evidence.

BRENNAN CJ:   Let us get it piece by piece.  So far as the adjournment application is concerned, let us deal with that first.

MR KELEMAN:   Certainly.  Then the inconsistency in relation to Sandra Warrender’s evidence, we say, is also of some significance.

BRENNAN CJ:   But how is this going to assist in the argument with respect to the adjournment?

MR KELEMAN:   The fact is that the alibi evidence, we assert, was before the jury, so the jury had the benefit of this evidence.

BRENNAN CJ:   Right, that is your proposition.

MR KELEMAN:   That is the proposition I put, and it was not challenged in any way.  It was before the jury.  It was not undermined by the judge.  In fact, in his Honour’s summing up his Honour put this material fairly to the jury and did not seek to deprecate it in any way.  In fact, if anything, his Honour seemed to put it to some extent on a pedestal.  He made the point, for example ‑ ‑ ‑

McHUGH J:   I must say that was not the way I read it.  His Honour’s comment, as I recollect, that he made seemed to be very sceptical.

MR KELEMAN:   Perhaps it might be appropriate if I might with the Court’s leave hand up the portion of the summing up that dealt with this aspect.

At page 20 of the summing up his Honour put to the jury the evidence of Detective Platt in relation to the alibi.  At page 21, at approximately point 3, his Honour said:

And this evidence was given on 7 July which is only three days after that particular conversation.  So that is what Brenda Warrinda told Detective Platt on 4 July and you can compare that with what Mrs Warrinda told us here and you may think they really fit in reasonably well.  But that’s a matter for you.

His Honour was also concerned to deal with a submission that had obviously been put by the Crown that it may have been the fault of these two alibi witnesses that statements were not obtained from them by the police.  His Honour made it quite clear on pages 21 and 22, but particularly 22 at point 7 that it was a matter for the police to properly investigate the matter and not a matter for the alibi witnesses at all.  At point 7 his Honour said:

Now members of the jury, who should have gone after whom to get a statement is really not the point.  The point is that very early in the piece an indication was given to the police officers that this accused was home and that there were witnesses available to establish that.

Then at the top of that page his Honour makes the point at points 1 and 2 that the investigation of these matters was a matter for the police to pursue, not a matter for the witnesses.  Then at page 24 - and the Crown relies on the whole of that page - his Honour said:

You see quite often people might think “Oh there’s something suspicious, who does he get to give evidence about where he was at 7.00 o’clock on that Sunday morning, his wife.”  Other close relatives might be in a position to give evidence but they are apparently attending a doctor’s appointment in Sydney today.

Well there is nothing unusual about the only person that would give evidence as to someone’s whereabouts, being that person’s very close relative.  I mean if any one of us in this court room were asked to establish where we were between six forty‑five and seven thirty last Sunday morning, the answer would probably be “We were at home.”  And who were we at home with?  Well in all probabilities we’d be at home with some close member of our family, be it a husband, be it a wife, brother, sister, mother father.  If he had come along with the Archbishop of Canterbury you might be very suspicious about the accuracy of that alibi.  But to say that there he is between a quarter to seven and half past seven on a Sunday morning in the company of his wife and children with a sister in‑law coming up to borrow some milk at one particular stage, his mother in‑law being on the phone, at the end of the phone and yelling out and the accused yells out, tells one of the kids off.  Well does that sort of have the ring of truth to it.  It is a matter for you to decide, but I do think you ought to realise when you are looking at alibi evidence and looking at the fact that it comes from a member of the family, just think of what you would expect, who you would expect that evidence to come from.

We would rely on that to say that it is apparent from what his Honour said to the jury that, rather than deprecate it or undermine it, his Honour, in fact, is doing no such thing.  His Honour is putting the defence, probably on a much higher plane than could have been put if those two witnesses had been called and been cross‑examined.  So that is the submission we make in relation to that.

Do your Honours wish me to deal with the question of the tactical consideration on the part of the legal representatives in not issuing subpoenas?

BRENNAN CJ:   You deal with whatever aspect you think appropriate, Mr Keleman.

MR KELEMAN:   Thank you.  In so far as the miscarriage of justice point is concerned, it is our submission that the conduct of the appellant through his legal representatives is a relevant matter to take into account.  The question of any unfairness or in assessing whether a trial is unfair cannot be looked at simply objectively but the conduct of the parties has to be considered together with all the circumstances, including the evidence in the case.

It is our submission that the legal representatives erred in two ways.  The first error of judgment occurred in relation to failing to properly convey to the judge the immediacy of the child’s medical needs.  The second and perhaps more important consideration is the fact that they failed to have subpoenas issued in order to ensure that the witnesses would attend.

McHUGH J:   I put that to Mr Game and it is hard to rebut his answer to me, is it not?

MR KELEMAN:   The judge, on a number of occasions in the pre‑trial applications, indicated that it would have been appropriate, if the witnesses were so important, for them to be subpoenaed.  He also made it clear when the application was made during the trial that if, in fact, subpoenas had been issued, the position would have been very different.

BRENNAN CJ:   What would have been the difference in position?

MR KELEMAN:   In all likelihood, his Honour would have adjourned the matter to permit the witnesses to be called, and that is the point we make.

McHUGH J:   This seems to me to miss the whole point.  Let it be assumed that these people had gone away for some trivial reason but nevertheless they were going to be available at 9 am on 27 August.  How could the judge reasonably refuse the adjournment?

MR KELEMAN:   It is not a question of what members of this Court might have done; it is not a question of what members of the CCA might have done.  In our submission, it is a question of whether or not his Honour erred in the exercise of discretion.  And it may well be that members of this Bench would give different weight to certain aspects.  It may well be that most people looking at this matter would have been given different weight to the various considerations.  But this judge was, in fact, sympathetic ‑ and I use that word loosely ‑ to the needs of the poor child.  That is set out in his judgment.  He has not sought to undermine the seriousness of her condition or the fact that the medical attention was required urgently.  He has had regard to all of that.  He has had regard at the same time to the other factors involving the availability of witnesses, of the jury and of the court management aspect which is not an irrelevant matter.  He has had regard to all of those matters and he has made his decision.  For this Court to say he has erred, in my respectful submission, would involve this Court simply supplanting the judge’s view with its own.

McHUGH J:   Well, really, I mean, the circumstances to refuse a three hour adjournment for essential witnesses in a criminal trial would have to have an overpowering case.

MR KELEMAN:   It might have been less than three hours, I think, it was two, or two and a half.

McHUGH J:   Two and a half.

MR KELEMAN:   I cannot take the case any further.  It is set out in the outline of argument.  I have sought to put it as forcefully as I can.  If there is anything else I can assist the Bench with - if there is not, I will sit down.

BRENNAN CJ:   Yes, thank you, Mr Keleman.  The Court will adjourn briefly to see what course it should take.

AT 12.59 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.03 PM:

BRENNAN CJ:   The Court will adjourn until 2.15 pm and we will then relist the matter.

AT 1.04 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

BRENNAN CJ:   We need not trouble you in reply, Mr Game. 

The appellant was convicted of attempted robbery in company after a trial before the District Court of Bathurst on 27 August 1993.  The trial judge refused the appellant’s counsel’s application for an adjournment of the trial from lunch time on 26 August 1993 until the morning of 27 August 1993 to enable the appellant to produce the evidence of two alibi witnesses.  The evidence of the two witnesses was critical to the defence.  They were in Sydney on 26 August but they would have been available to give evidence on the morning of 27 August 1993. 

Of course, the refusal of an adjournment is an exercise of a discretion and the respondent submits that no ground exists for reviewing the trial judge’s decision.  The principles governing the review of the discretionary judgment are well established.  One ground for review is, and I quote:

that the result is so unreasonable   or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court at first instance: House v The King (1936) 55 CLR 499, at 504 and 505; ‑

That is taken from the judgment of Mr Justice Kitto in Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, at 627. See also Reg v McGill (1967) VR 683, at 685. In this case the refusal of the adjournment resulted in the appellant being unable adequately to present his case. The discretion miscarried.

In the Court of Criminal Appeal reference was made to what was said to be the appellant’s solicitors “serious error of judgment” in failing to issue subpoenas to compel the attendance of the witnesses on 26 August 1993.  The trial judge had commented on the absence of subpoenas.  On 26 August 1993 the two witnesses were required to attend with a six year old spina bifida child, the daughter of one and granddaugher of the other, for urgent medical attention in Sydney.  They were expected back in Bathurst before the Court sat on the morning of 27 August 1993.           In those circumstances, the criticism made of the solicitor is unwarranted. 

There has been a miscarriage of justice.  The appeal must be allowed.  The judgment of the Court of Criminal Appeal is set aside.  The appeal to that Court is allowed.  The conviction is quashed and a new trial is ordered.  Adjourn the Court until Tuesday next at 10.15 am.

AT 2.19 PM THE MATTER WAS CONCLUDED