TKWJ v The Queen

[2001] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S269 of 2000

B e t w e e n -

TKWJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 AUGUST 2001, AT 12.16 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR G.P. CRADDOCK.  (instructed by Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE:   If it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR GAME:   At page 43 of the application book you will see in the judgment of Justice James that it is accepted in New South Wales that, in respect of character, counsel:

is entitled to seek such an advance ruling from the trial judge and that, if such an application is made, the trial judge is obliged to give a ruling.

And that, of course, is supported by the terms of the Evidence Act which provides for a variety of hearings and the matters contemplated by Hoch in respect of exclusion of the possibility of concoction and infection.

Now, in this case, counsel presented with the circumstance that there was now to be a trial of one count in respect of one complainant only and not the other, confronted with the prospect that the prosecutor would apply to call the evidence of the younger sister, which was in very similar terms and the complaint made on the same day as her elder brother, that an application would be made to lead that evidence in rebuttal.  Whether that be in reply or in the Crown case is unclear, but it is not necessary for my argument to show which.  Page 37 of the application book, counsel says this in paragraph 13:

It did not occur to me at the time of the trial to seek a ruling from the trial judge on the question of whether the Crown would be permitted to call evidence in reply, should the character evidence be adduced in the appellant’s case.

HAYNE J:   Now all this being so, could the Court of Criminal Appeal intervene, unless affirmatively persuaded that there had, in fact, been a miscarriage of justice?

MR GAME:   No, your Honour, but the question is, what is the content of a miscarriage of justice in this context?

HAYNE J:   And what do you say the relevant miscarriage has been?

MR GAME:   I will answer that question in one moment, because obviously it is the critical question, and we do say this case raises quite neatly a very important question.  Page 53 of the application book – I should say this, the miscarriage of justice is not measured by measuring the level of incompetence of counsel; it is by measuring the possible consequences of the error.  That is to say, counsel could make a very understandable mistake about whether or not evidence could be led on a co‑lateral issue in rebuttal.  It might be an understandable mistake, but it may have devastating consequences.

McHUGH J:   But accepting that that is so, is not the difficulty that you face on a special leave application this, that the majority of the Court of Appeal found that there was no reasonable possibility of a joint concoction so therefore the evidence would not have been excluded as a right or as a matter of principle and therefore it turned on the application of section 135 in the Evidence Act and they were persuaded, as a matter of discretion, that the judge would have ‑ ‑ ‑

MR GAME:   No, your Honour, the court made no such finding.  That is a mistake in our friend’s submissions.

McHUGH J:   Well, that is the way I read it on this ‑ ‑ ‑

MR GAME:   All they said was that there was no evidence at the trial of this.  That is at paragraph 53.  The critical paragraph in the court’s decision is at paragraph 51, and it is absolutely critical, in my submission.

HAYNE J:   Sorry, which paragraph?

MR GAME:   Paragraph 51, your Honour.

HAYNE J:   Yes.

MR GAME:   It says:

In my opinion, it is not possible for this Court to say any more than that, if an application for a ruling had been made, the trial judge might have made, but might not have made, a ruling favourable to the appellant.

That is to say, if we look at this from the point of view of the applicant, the applicant desires to lead character evidence on his trial.  His counsel is entitled to make an application.  His counsel, in our submission, would be negligent if he led evidence without making an application and would be negligent if he did not make an application in the circumstances, because there are no technical considerations that weigh against it.  The failure of counsel to make the application stands, in our submission, in precisely the same position as an unexercised discretion by a trial judge, and that is the special leave point.  What is the content of a miscarriage of justice?  What Justice Hunt said is that there must be, in Ignjatic, a real chance that the evidence would be excluded in his favour, or be admitted, necessarily.  What we say is that Graham v The Queen principles apply, namely that the trial judge might have, on the evidence, come to a discretionary decision to exclude the evidence, and we succeed on that, in our submission.

McHUGH J:   Well, you really do not state a special leave question.  I do not know how many times, Mr Game, counsel and applicants for special leave have to be told that to say what is the test to be applied in this or that field is not stating a special leave question.  It has to be more concrete whether something or rather happened.

MR GAME:   But something did happen.  What happened in this case is that counsel did not make an application that he should have made.

McHUGH J:   Well, maybe, but if you want to say it was a miscarriage of justice, then the question ought to be framed having regard to the particular facts and asking whether that constitutes a miscarriage of justice, but to say what is the test to be applied says nothing; it does not tell us anything.  You are asking us not to decide an issue between parties but to work it out for ourselves.

MR GAME:   No, not at all, your Honour.  What I am saying is that the content of a miscarriage of justice is to be measured in precisely the same way when one is concerned with a negligent mistake of counsel, which results in an application not being made.  It is exactly the same as if the application was made and not ruled upon or a discretion miscarried.  That is absolutely a central and important question and it arises in this case, and it arises in this case because of what I have already read out to you in paragraph 51.

McHUGH J:   Yes, but what about paragraph 53?  In paragraph 53, the majority said:

there was no evidence which would support an argument that the complainant had colluded with K and there was no evidence as to the appellant’s character but there was also no evidence of the appellant having committed offences against K.

MR GAME:   No, that is at the trial.  It is quite clear from paragraphs 49 and 50 that Justice James was of the view that the argument could have gone either way, and that is what he is saying at paragraph 51.  That is his conclusion from putting one argument at 49 and the contrary at 50 and, in my submission, it is quite wrong to say that paragraph 53 is a finding by the Court of Criminal Appeal that there was no possibility of collusion on the evidence before them.

HAYNE J:   Well, what was the evidence before them that would have permitted a conclusion of concoction?

McHUGH J:   They had access to the statement of K, did they not?

MR GAME:   They were provided with the statement of the boy and were provided with the statement of the girl, and the statement of the girl showed that she knew that her brother had made an allegation; she made allegations with some particulars that were precisely the same as the allegations made by her elder brother.  That material was not before the trial judge and that is what the point is that is being made at paragraph 53.  Justice James, in no sense, purported to rule upon whether or not there was a possibility of collusion in the material before him and, in my submission, it is a misreading of the judgment to so read it, it is a misreading of the whole intent of the judgment, and the mistake that Justice James makes, one can see at paragraphs 57 and 58.  He does not resolve the question which is posed at 51, but then at 57 he says:

Counsel for the appellant at the trial did not take this course, because he considered that the admission of evidence of the offences allegedly committed against K would be seriously damaging to the appellant and would outweigh any advantage to the appellant from adducing evidence of good character.  This was a decision which competent counsel would have been warranted in making.

Now, there is no reason for not asking for the ruling and I should say, I do not take my friend to be arguing, in fact I take it to the contrary, in any sense that paragraph 53 is a comment about the exclusion of the possibility of collusion in the material put before the court on appeal.

HAYNE J:   Well, can I understand what you say is the miscarriage?

MR GAME:   Yes.

HAYNE J:   This man might have had a different trial in which other evidence might have been adduced.  Where do we go from that set of propositions to the conclusion, miscarriage?

MR GAME:   Well, in paragraph 37 it says:

The appellant’s trial was a trial in which evidence of good character might have assisted the appellant.

So we start with that proposition.  He may have obtained ‑ ‑ ‑

HAYNE J:   Other evidence might have been called.  Where lies the miscarriage?  It is that I cannot grasp at the moment.

MR GAME:   Your Honour, the miscarriage of justice flows from the mistake that counsel made in not making the application which might well have been successful.

McHUGH J:   That cannot be a miscarriage of justice.  A miscarriage of justice, when you are looking at paragraph C in the definition in section 6 must look at the result of the trial.

MR GAME:   But, your Honour, the result of the trial is that this man ‑ ‑ ‑

McHUGH J:   Suppose he had been acquitted, you would not say that there was a miscarriage of justice by reason of counsel not having raised the point.  You have to look at the result of the trial and say the result would be different or might have been different on one view.

MR GAME:   Yes, it might have been different.  It might have been different because he might have had evidence of good character before the jury, it may have affected their assessment.  But you cannot ‑ ‑ ‑

McHUGH J:   Well, the critical point is that you look at the end result and what the likelihood of a different course having on the jury’s verdict.  It is not what counsel does that creates the miscarriage of justice.  It is a step in your argument, but ‑ ‑ ‑

MR GAME:   The result is that this man desired to have evidence of good character put before the jury.  That is the starting point.  The concluding point is that he did not have evidence of good character put before the jury, therefore he has lost a prospect of an acquittal according to the reasons of Justice James.  The court has made no finding ‑ ‑ ‑

HAYNE J:   Assume, for the purposes of debate, that had the trial been run differently, there may have – let us leave aside the degree of possibility or probability - been a different outcome.

MR GAME:   Yes.

HAYNE J:   I do not, for the moment, yet see the next step that intervenes between that and the conclusion, “therefore there is a miscarriage”.

MR GAME:   Well, your Honour, it was articulated in Ignjatic by Justice Hunt whether or not there was – perhaps if I just turn that up.  In Ignjatic 68 A Crim R at page 338 the passage says:

It is for the appellant to persuade this Court that a miscarriage of justice did in fact occur in order to succeed upon this ground, and it is for him to provide the evidence upon which such a conclusion could fairly be based.  It is not sufficient that the appellant may have merely lost a chance to raise various issues which were not raised at the trial.  There was no miscarriage of justice unless it can be shown that there was at least a substantial chance that the appellant would have succeeded in relation to those issues.

Now, your Honour, we actually take issue with the substantive test that his Honour applies, but what we say is that that acknowledges that one has to make some sort of assessment about the possibility of success.

McHUGH J:   Well, I know, but the problem with these sorts of arguments is it is a very favourable situation from your point of view, it is almost “a heads I win, tails the Crown lose” argument, because if counsel had got the ruling and it had gone adversely to him or if counsel had called character evidence and then K had been called in rebuttal and he was convicted, then he would be saying he should never have done it.  He would never have been convicted if he had not raised good character reference.

MR GAME:   I do not see that there is any ‑ ‑ ‑

McHUGH J:   Well, I know; you are striving for an intermediate point, where you say, well, “We should have had the benefit of a ruling before he should have had to make that choice.”

MR GAME:   But the law says he is entitled to that ruling.

McHUGH J:   No, it does not say he is entitled to the ruling.  It says he has a privilege; he can apply to have the ruling.  It does not have to do it.

MR GAME:   No, your Honour.  The law says he is entitled to the ruling if asked.

HAYNE J:   If asked.

McHUGH J:   Yes, if asked.

MR GAME:   And he was not asked and there was no reason why he should not be asked.

McHUGH J:   Counsel made a decision.

MR GAME:   No, he made an ignorant decision.  He never even ‑ ‑ ‑

McHUGH J:   Well, he made a decision.  It might have been ignorant, but he made a decision.  The fact that it was ignorant does not affect whether or not it was a miscarriage of justice, does it?

MR GAME:   Yes, your Honour.

McHUGH J:   Well, supposing he knew all about his right to seek the ruling, but he had elected not to.  Now that surely could not make any differences to whether there has been a miscarriage of justice, can it?

MR GAME:   No, that is true, but that is what I said at the outcome, that the level of his incompetence is not the measure of the miscarriage.

McHUGH J:   Exactly.

MR GAME:   The measure of the miscarriage is the possibility that has been taken away from him of having good character put before the jury without having to conduct another trial concerning the other complainant, K, and that is the content of the miscarriage of justice.  That is what Justice Adams identified at pages 53 and 54 of the application book and which, in our submission, is not answered at all in any sense by the judgment of the majority.

As I said before, in my submission, from the appellant’s point of view, wishing to raise evidence of good character, the failure of his counsel to make an application, which he should make, stands in exactly the same position as the failure for a judge to make a ruling which he should make on the application, but does not.

McHUGH J:   Well, I hear what you say but I think there is a large difference between the two situations.  I mean, supposing counsel had deliberately decided not to make the application, where would you be then?  Counsel knew of his right to make an application but decided that, in any event, he was not going to make it.

MR GAME:   Well, that is exactly the same mistake.

McHUGH J:   Yes.

MR GAME:   There is no more or less to it than that.  But, in a circumstance such as this, where the evidence of the other complainant has – the circumstances are somewhat heightened in this case, because the

Crown Prosecutor has already made a decision not to lead that evidence on the trial.

McHUGH J:   Yes.

MR GAME:   Has chosen to sever the counts; has made a particular decision that they should not be head together, so presumably, on the basis that the tendency and coincidence rules cannot be satisfied.  Now, for a much more limited purpose, he is going to try to get it back in, in circumstances where it is only there to rebut the evidence as to good character.  So, it has got far less probative value in those circumstances.  Defence counsel met with this circumstance and a client who wishes to raise character does nothing.  This is not just a run of the mill decision; it is quite a heightened and extreme circumstance, putting a heavy burden on counsel to address the problem with which he was confronted.  Those are our submissions,  if the Court pleases.

McHUGH J:   Yes, Mr Blackmore.

MR BLACKMORE:   Your Honour, unfortunately, I have to concede or accept that 53 perhaps should be read the way in which the appellant reads it, not the way I put it in my written submissions.  I did, in fact, concede that to my friend earlier to this proceeding, but, with respect, that does not concede the appeal, by any means.

The position in this case is entirely different from Graham’s Case which, if we are talking about the same Graham, it is the Graham Case in the High Court, which was a case involving an error of law in relation to the Evidence Act.  You have to approach the matter by looking at section 6 of the Criminal Appeal Act, which deals with specific different issues and in one of them is an error of law.  Where you have an error of law then the Crown is thrown into trying to establish whether or not there is a substantial miscarriage of justice.

McHUGH J:   Yes, but the test of miscarriage of justice is so thin, all you have got to show is a possibility that you might have got a different result, and now the courts have allowed you to take into account the conduct of counsel, why is it not arguably a miscarriage of justice?

MR BLACKMORE:   Well, what I am focusing on is the onus that is applied here and, with respect, the key to this case, in our submission, is paragraph 51, which is the very paragraph which my friend points to.  Here we had a condition precedent before good character could be led.  In essence, we can read between the lines here that he would not have led good character unless he had received leave.  That seems to be the thrust of the appellant’s position here.

McHUGH J:   Yes.

MR BLACKMORE:   The key to the point is that whatever the onus is and whatever level of the onus is, which is where I understand my friend is coming from, whether it is substantial or something diminished to that, there is certainly an onus on the appellant to satisfy the court that there was a miscarriage of justice.  In this case you cannot do so unless you satisfy the court that leave would have been granted or at least there is a reasonable possibility that leave would have been granted.  The Court of Criminal Appeal were addressing the very same issue and the majority reached the conclusion that they could not be satisfied of that issue.  There is no reason to believe why the High Court, looking at the same material, is likely to reach any difference conclusion in relation to it.  In other words, there is no real issue in this case that needs to be determined. 

The issues in relation to incompetence of counsel and their relationship to miscarriage of justice have been determined in Birks’ Case and other cases.  They have been applied in the High Court.  Admittedly, the Court has not directly looked at that issue, but it has certainly referred to it in a number of other decisions, with acceptance, with respect – and therefore, there is no under-riding issue in this case.  The question is, whether or not there was a miscarriage of justice in this case.  When the onus was put to the test in the Court of Criminal Appeal, the Court of Criminal Appeal could not reach that conclusion and it is simply left on that basis, with respect.  It is worthy of note, I think, that not ‑ ‑ ‑

HAYNE J:   Can I just stop you there and take you back two steps, because I am by no means certain I am following the argument.  As I understand your argument, it is that there is no miscarriage unless it is affirmatively demonstrated that the accused would have had a favourable ruling - call it that for brevity - at trial.  Is that step one?

MR BLACKMORE:   Yes, that is the condition precedent that I referred to, yes.

HAYNE J:   Not enough to demonstrate that “might have had a favourable ruling”

MR BLACKMORE:   No.

McHUGH J:   Why not?  Why is that?

MR BLACKMORE:   Well, because the distinction between miscarriage of justice and an error of law.  Where there is an error of law established under section 6 immediately the onus is reversed; it is thrown back on to the respondent to establish that there was a substantial miscarriage of justice.  But here it is not a reliance on an error of law, it is a reliance upon simply any other miscarriage of justice.  So the onus stays with the appellant at that point and “might”, with respect, does not get to the onus.

McHUGH J:   Why not?  Why is it not a miscarriage of justice if a person is convicted of a crime by a defect in procedure which, if it had not occurred, might have resulted in that person’s acquittal?

MR BLACKMORE:   Well that is why I have interposed the condition precedent.  Here we do not reach that standard because we have not – if the question was, but for this good character would have been led, then perhaps your Honour would be right in terms of that level of satisfaction.

McHUGH J:   But once you have pitched the test of miscarriage at the level of possibility, that is, you are not, as an appellate court, concerned to predict outcome, but possibility of outcome, why do you require certainty in the premise?

MR BLACKMORE:   It is to build the foundation to base your submission that miscarriage applies, otherwise you are going on possibility on possibility.  Certainly there must be some reasonable standard of evidence available, or proof to show, that even the possibility exists.  Here the condition precedent is the leave and the court has looked at that interposing question and decided that they are not satisfied, and they did not put on a standard of substantial or otherwise, they just simply said they are not satisfied that it was made on this material to grant leave, which would have been a condition precedent as to whether or not good character could ultimately have been led or not.  I do not know that I can say more about that.  I adopt what your Honour Justice McHugh has said in relation to the Crown losing either way.

McHUGH J:   I am not sure I was right about that, but ‑ ‑ ‑

MR BLACKMORE:   Well, with respect, I thought it was fairly perceptive.

HAYNE J:   Yes, but you are on your feet, Mr Blackmore.

MR BLACKMORE:   It would have been part of my submissions, in any case, but the point about it is this:  there were choices made by this counsel, with respect.  At the Court of Criminal Appeal it was alleged that the Crown had severed the counts to the disadvantage, almost allegedly disadvantaged deliberately, of the accused.  Well that was just plainly not correct.  The Crown Prosecutor at trial was simply following established authority, has said that, in an ordinary case, these cases should be run separately.  But the

point is that counsel at trial never went back to the Crown and said, “Well, no, my case is founded upon the fact that I need to establish concoction”; choice was made.  He proceeded with the trial that he had, on that basis.  There were dangers clearly involved in which ever way he went in this case and, with respect, I think it is correct to say there was a real risk, whichever these choices he made, and they were both very difficult choices, that it is possible that somebody could later have looked at that and said there was an error.  Those are our submissions, your Honours.

MR GAME:   The court did not say that it was not satisfied on the “might” test or the reasonable possibility test.

McHUGH J:   No, the court did not say that there was no evidence upon which you could find collusion; it seems to say that if an application for a ruling had been made the judge might have - - -

MR GAME:   Yes, in our submission, we must succeed at that point, and that is the critical question.  We also say that ‑ ‑ ‑

HAYNE J:   That is to say, the proposition for which you ultimately contend would run something like this:  because this man might have had a different trial, there might have been a different outcome.  That, without more, demonstrates miscarriage.  Is that the ‑ ‑ ‑

MR GAME:   Yes, but predicated on the system – the adversary system is broken down, because his counsel did not make the application.

McHUGH J:   Well, no, you put it a bit higher than that, do you not?  There is a defect in procedure, in the procedure applicable to the trial?

MR GAME:   That is right, your Honour, yes. We say he is no longer bound by his counsel’s conduct in the Giannarelli v Wraith sense and the reason for relying on those principles no longer applies in this situation and, as I said at the outset, this case raises this question in a very neat way and, in our submission, that is an appropriate vehicle for the Court to grant special leave.

HAYNE J:   I say nothing about what has been put forward in the way of evidence in this case, but the proposition for which you contend will put a premium on the most studied and careful analysis of counsel’s conduct in the course of trial in ways that may have profoundly unfortunately effects.

MR GAME:   Well, your Honour, that may or not be correct, but we have gone down the road of examining what counsel do in trials with great scrutiny.  We have cases on it.  Birks’ and Ignjatic are two cases.  Whether we lose or win, ultimately, this is a terribly important question about what

the Court of Criminal Appeal does in respect of complaints that follow from actions of counsel.

McHUGH J:   Most of the cases about counsel are in New South Wales, are they not?

MR GAME:   They seem to be, your Honour.

McHUGH J:   Yes.  Well, in fact ‑ ‑ ‑

HAYNE J:   Well there are a couple in Victoria, Re Knowles, is it, the reference to the Full Court murder conviction.

MR GAME:   The Re Knowles is the case, yes.  I mean, if you press the computer on this topic you will get hundreds of cases.  Your Honour, there really are a lot of cases on the area.

McHUGH J:   It must be hard practising at the Bar these days.

MR GAME:   But, your Honour, well I have said ‑ ‑ ‑

HAYNE J:   To be called on to swear affidavits about what you did or did not do.

MR GAME:   Yes but, your Honour, what I am saying is that, like it or not, this level of scrutiny is conducted in respect of trials.  In our submission, correctly so, for the reasons that I have given and this case demonstrates how a miscarriage of justice may arise from that.

McHUGH J:   Yes, there will be a grant of special leave in this case.

MR GAME:   If the Court pleases.

AT 12.47 PM THE MATTER WAS CONCLUDED