Turnell v The Queen

[2007] HCATrans 602

[2007] HCATrans 602

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S223 of 2007

B e t w e e n -

EDMUND JAMES TURNELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2007, AT 12.43 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with MR H.K. DHANJI.  (instructed by Legal Aid Commission of NSW)

MR D.C. FREARSON, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HEYDON J:   Mr Frearson.  I am afraid you will have to work harder now, Mr Game.

MR GAME:   I am trying to entice you with another case about the proviso. 

HEYDON J:   You seem to be obsessed with the proviso.

MR GAME:   Me or?

HEYDON J:   The Court.

KIEFEL J:   The Court, yes.

MR GAME:   They come in spates like diving cases into – but the proviso has – anyway, I am going to try to persuade your Honours to take this case.  Could I just take your Honours first to page 175 of the application book.  Now, the two errors asserted were upheld so in section 6 language we have, presumably, a miscarriage of justice ground succeeds in an error of wrong decision of law, I suppose, which in the language of section 6 itself says “should be upheld because”, so there is an upholding at that point.  The two grounds are back at page 138 and they are in paragraph 10.  Again there is an awkwardness about calling directions a wrong decision of law but the court is well aware of that awkwardness. 

Can I just say this.  Before coming to the proviso question it is not quite right to just describe this as a Browne v Dunn problem because what is happening here is not simply, shall one say, drawing ordinary Browne v Dunn inferences for the failure to put something.  What is actually happening here is the prosecutor is putting to the jury and it is getting reaffirmed that these are lies that the accused is telling in the changing of his case.

HEYDON J:   He said one thing to his counsel and there is another thing being said now.

MR GAME:   That is right.  Then it gets reinforced by the judge.  So what you have is in the directions and in the summing‑up, and I hope I am not exaggerating this, but because it is so central to his case, it is about central features, that means it is really consciousness of guilt lies, not just credibility lies.  Now, again maybe I am exaggerating, but it has that tone to it, is that he is changing his case because he cannot deal with the evidence or he has to accommodate it to changes in what the prosecution is putting.  So when one goes then to the proviso, one has, shall I say, the provisional upholding of two grounds on a significant issue in relation to the trial. 

Now, if you could go to page 176, that is a reference to the decision in Cornwell.  This part of Cornwell was not of concern to the court in the appeal.  Your Honours, I can tell you that those five dot points come from between paragraphs 42 and 45 of Weiss because the actual reported decision sets them out.  It may be that the problem is in the formulation of that way or it may be the problem is in the way in which the issue is addressed, but what has happened is, first of all, paragraph 41 of Weiss – there is really no need to go to it – was a detailed examination of whether or not the circumstances were such that you could make such an assessment to the relevant standard.  That is really step number one in this process, because if you cannot, the “must” in one and three in that, fall away.

The next thing is that what has fallen out of this altogether is an assignment of significance of the error, because its significance has been pulled out.  Again, it may be that that is not implicit in what is said by Chief Judge McClellan that is set out at paragraph 243, but it is clear that by the time you get to paragraph 55, the error has been pulled out.  Now, your Honours, again there is no need to read Weiss at this moment, but in paragraph 43, the question of making the independent assessment, including the verdict, is in the context of comments about the significance of the error.  The significance of the error relates to the testimony of the accused and whether or not he is more probably guilty because he has changed his evidence or his credit is to be disregarded in some respect.  That is the significance of error.  So that has fallen out.

Now, the process that is contemplated – and if this is a correct view of Weiss, it may require clarification – is that, in effect, it turns into a trial by the Court of Criminal Appeal alone and, in my submission, that is going too far when one sees what appears in paragraph 43 and it would have the ironic result that in significant error you consider the significance of the error, very significant error concerning fair trial you consider the significance of the error, in the middle where you have upheld the appeal provisionally the significance of the error has disappeared. 

Now, the next point is this.  In dot point 3 it says “including the fact that the jury returned a guilty verdict” and indeed that does appear in paragraph 43 but, again, contextually one has to appreciate that including the fact that the jury returned the verdict guilty is all about in the context of what the error was and how significant it was, ie, is there some other compelling line of reasoning towards guilt which makes the error less or more significant?  Here it has simply been elevated into including the fact that the jury returned a verdict of guilty, ie, we give weight to that, yet we have put aside the error.  That is what the court explicitly does in paragraph 55. 

Then, when one goes to dot point 5, “There may be cases where it would be proper to allow the appeal and order a new trial”.  Now, if the significance of the error has fallen out in what appears as dot point 3, then the significance of the error in what might be described as the fair trial question becomes far more significant because that is the point at which there is curial testing in terms of whether there should or should not be a retrial of the significance of the error.  I will not take your Honours to it and it is not on our list but my junior drew to my attention this morning that in Burke’s Case the Chief Justice ‑ ‑ ‑

HEYDON J:   New South Wales, Burke’s Case, yes.

MR GAME:   Sorry, it was Chief Justice Gleeson.  There were other bits and pieces but that was a case about basically similar Browne v Dunn inferences being drawn in a very adverse way.  His Honour held that there was not a fair trial in the relevant sense.  I would not pretend that is everything in it, but that is the most compelling part of the decision concerning the inferences drawn from the failure to put and those kind of things.  So what I say is this, that if in dot point 3 the significance of the error has gone, then the curial examination of the significance of the error becomes far more important at dot point 5. 

HEYDON J:   Do you actually submit that?  Remember at the end of paragraph 45 in Weiss the Court referred to, “Cases where there has been a significant denial of procedural fairness at trial”?  Do you submit it comes within that exception? 

MR GAME:   Yes, your Honour.  What I am saying is this, that if the analysis is correct that the error has gone to one side, as it were, then what is the normative content of paragraph 45 becomes a critical issue.  May I make another point about this.  This reasoning – this will come out wrongly, but anyway – is foreign to the Court of Criminal Appeal.  This is a new exercise that the court has engaged upon.  That, in my submission, explains why many of the things are said in the passive tense.  For example, 55, line 3 “justify a conclusion”.  I know his Honour says “my assessment” but he has not, for example, assessed or even mentioned the good character evidence that the accused gave. 

He has not examined in detail, shall I say, the cloudy area that is created by this trial, including the fact that there was an acquittal on the aggravated version of count 4 which did not stand with the complainant’s evidence, and this was a very murky factual situation in which these offences were alleged to have occurred. May I put it this way to your Honours. If this was, shall I say, a section 75A of the Supreme Court Act rehearing or if this was a – I am thinking of Fox v Percy and the footnotes to those in Weiss.  If it was that kind of exercise, one would think that this was hardly an examination of (a) can we make this assessment and (b) if we can make this assessment, where does that assessment lead us? 

Really, the case would have to be justified on what might be described as improbable inferences or the probabilities as opposed to – that is to say, questions of demeanour impression could have had no impact on the jury’s verdict.  One would actually have to arrive at that point.  My point about that in this context is one sees none of that discourse and that discourse would be central to the exercise which this Court contemplates in Weiss.  So what we are putting is either that there has been a misapplication of Weiss or that the matter requires further clarification.  We submit this case is a – I am probably exaggerating again – very good vehicle for this because it has identified errors.  It has identified errors which would be upheld on the second and third parts of section 6 of the Criminal Appeal Act. 

It is quite an important issue in a broader sense because, if that is really what Weiss means and either you do not examine the significance that the third point ascertained there or you read down procedural fairness, the curial supervision of serious errors in trials tends to lose its significance.  If I can put it crudely, people might think, well, we will take the case to the judges, ie, these errors will all be put to one side and that is a serious issue of policy.

HEYDON J:   Who says that statement, “We will take the case to the judges”?

MR GAME:   The prosecutor says, “Well, damn it, I will just do this.  I will take this case to the judges”, ie, who cares what happens?  That is a real problem.  Could I give your Honours an example.  It was not until this Court ‑ ‑ ‑

HEYDON J:   To attribute to prosecutors as a class an abuse of process is a strong submission.

MR GAME:   Sorry.  Maybe it is too strong, but could I give your Honours an example.  Until this Court in McKinney and Judge and Carr said no more uncorroborated signed confessions or verbals, until this Court said, “Well, we are not going to accept convictions or we are going to throw out the evidence”, the practice continued.  The day those decisions were handed down, the practice stopped.  Now, my point is this.  If you take away the

curial supervision of the errors, then that creates – maybe I put it too strongly, but it creates a problem at the other end of the process or it has that potential. 

That is why I say this case is an important case because it has some neat errors identified that have significance for the accused’s evidence and there is clearly, if that those five tests set out by Chief Judge McClellan are to be applied, then, in our submission, the proviso will not be applied correctly in New South Wales.  May I withdraw what I said about prosecutors.  I was trying to actually make a point about how the process might unfold if that kind of – quashing a conviction and ordering a retrial is a very different thing than exercising the proviso in practice for all concerned.  Those are my submissions, if the Court pleases.

HEYDON J:   Thank you, Mr Game.  We need not trouble you, Mr Frearson.

Although there are respects in which the language used by the Court of Criminal Appeal in applying the proviso might have been improved, in our opinion there is no reason for granting special leave in view of the strength of the Crown case against the applicant.  The strength of the case is such that a more appropriate approach on the part of the Court of Criminal Appeal would have led to the same result.  The application is dismissed.

The Court is adjourned until 10.15 am on Monday, 22 October 2007 in Perth.

AT 12.59 PM THE MATTER WAS CONCLUDED