TWL v The Queen

[2012] HCATrans 257

[2012] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S149 of 2012

B e t w e e n -

TWL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2012, AT 11.59 AM

Copyright in the High Court of Australia

MR H.K. DHANJI, SC:   May it please the Court, I appear with my learned friend, MR D.P. BARROW, for the applicant.  (instructed by Legal Aid Commission of NSW)

MR J.H. PICKERING:   I appear for the respondent. (instructed by Director of Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Dhanji.

MR DHANJI:   Thank you, your Honour.

HAYNE J:   You need an extension of time, I think.

MR DHANJI:   With respect to the first decision given on 5 April, that is so, your Honour.

HAYNE J:   Is that opposed?

MR PICKERING:   No, your Honours.

HAYNE J:   You have that extension.

MR DHANJI:   Thank you, your Honour.

HAYNE J:   Yes, Mr Dhanji.

MR DHANJI:   Your Honours, this matter, we submit, raises an important question as to the proper approach of a court of criminal appeal called upon to determine an appeal on what might be called the first limb of section 6, the unreasonable verdict ground in circumstances where the court is also of a mind to uphold the appeal on other grounds, which themselves would not necessarily lead to an acquittal.

In the present case the applicant’s appeal contained within it ground 10, which was a contention that the verdict was unreasonable and could not be supported having regard to the evidence.  He succeeded on other grounds but, as we say, if successful on ground 10, we submit, was entitled to an acquittal and there seems to be no issue about that.

Your Honours, there are essentially two steps to the argument.  The first step is that the court was obliged to deal with ground 10 to finality.  The second step is that the court did not do so.  With respect to the first step, your Honours, I can deal with that, I think, very quickly.  This Court, in Jones v The Queen - it is in our book of authorities, your Honours do not need to turn it up, I can give your Honours the relevant part very quickly, but it is at page 411 of Jones and 113 of our book.  The Court said – and this is a reference to the Court of Criminal Appeal:

But the court cannot fail to hear and determine tenable grounds raised and argued in support of a verdict of acquittal merely because the court accepts other grounds of appeal which result in quashing the conviction and an order for retrial.

It has not been suggested, either by the Court of Criminal Appeal or by the respondent, that the argument with respect to the unreasonable verdict ground was not tenable.  Once that position is accepted the obligation of the court, pursuant to Jones, was to deal with the ground to finality. 

The second contention then is that the court did not deal with the ground to finality, and if I can take your Honours to the reasons of the Court of Criminal Appeal.  They were given by his Honour Justice Macfarlan with whom Justices RA Hulme and Justice Garling agreed.  If I can take your Honours, firstly, to page 142 of the application book.  Your Honours will appreciate that – and it is down towards the bottom of page 142, there is a heading, “Ground 10:  ‘The Verdict of the Jury is Unreasonable and cannot be Supported Having Regard to the Evidence’”.

His Honour had previously indicated reasons for the earlier order quashing the convictions on various of the other grounds.  His Honour makes some preliminary observations in paragraphs 58 and 59 referring to this Court’s decisions in M v The Queen and SKA v The Queen, and I will come back in a moment to that, but critically his Honour says this at paragraph 60, halfway down page 143:

In light of my conclusion that the appellant’s conviction should be quashed on other grounds, it is neither necessary nor desirable that I deal with this ground of appeal to the full extent dictated by SKA and M.  In particular, as there were deficiencies in connection with the trial that resulted in a miscarriage of justice, it would be inappropriate for me to form –

That word is important ‑

and express a view, based upon what I find to have been a flawed trial process, on whether at the trial the Crown proved beyond reasonable doubt that the appellant was guilty of the offence charged.

Now, we submit that that is as plain a statement as one could hope for in relation to a failure to do the ‑ ‑ ‑

HAYNE J:   Well, be it so, and that may be open to doubt, what about paragraph 61, the sentence:

it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

Is that not conclusive against the weight of the evidence ground?

MR DHANJI:   For this reason, your Honour, what his Honour says there is this:

It is appropriate however that I consider the first aspect of the task ‑ ‑ ‑

HAYNE J:   Leave aside the manner of expression.  I understand the weight you put on that and it is no doubt appropriate you do so.  Come back to the question of principle.  Considering it against the weight of the evidence ground, the court must be satisfied first, must it not, that there was evidence available to the jury from which a conclusion of guilt was open.  Is that right?

MR DHANJI:   Your Honour, that expresses the “open to the jury” test.

HAYNE J:   The court must further be satisfied that this is not a case in which the jury must have entertained a reasonable doubt:  see M v The Queen.  Is that right?

MR DHANJI:   With respect, your Honour, could I put it this way?  The ultimate question is the “open to the jury” question.  That is the ultimate question, in our submission.

HAYNE J:   Yes.  Could the jury, on this evidence, have convicted?  Not, must they, could they?

MR DHANJI:   That is so.  The difficulty that arises is in understanding the process which that test employs, and if I can take your Honours to M v The Queen in this context, and if I can take your Honours to indeed the minority judgments because they are illustrative of the point that I seek to make, and at 501 of M - it is at page 51 of our book of authorities - this is in the reasons of his Honour Justice Brennan. It is the paragraph towards the bottom of the page:

The test whether it was “open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty” was adopted expressly by Gaudron J. and me in Knight v. The Queen and, without express reference, by the majority –

His Honour goes on, and I am skipping some words, but the next sentence:

But the test conceals an underlying controversy as to when it is “open to the jury” to be so satisfied.  I respectfully agree with the explanation of the term by Dawson J. in Chidiac –

His Honour goes on to set out Justice Dawson’s explication of the terms.  But what ultimately results in the same form of words, and your Honours will see this towards the bottom of page 502 of M in the penultimate paragraph on the page, his Honour says this:

And so, for both constitutional and practical reasons, an appellate court can seldom interfere with the verdict of a jury merely on the ground that the verdict is unsafe and unsatisfactory where there is evidence to support the verdict.

That demonstrates, in our submission, a conclusion as to what the “open the jury” test means that is quite different to the meaning given by the majority in M.  A further demonstration comes in the reasons of his Honour Justice McHugh.

HAYNE J:   Well, in M v The Queen there is statement, is there not, of four propositions which are said to be propositions stated with the assent of all members of the Court.  Am I mistaken in my memory - in plurality reasons? My memory was that there were four sentences which their Honours said represented the putting aside of differences in expression.

MR DHANJI:   It is at page 495.

HAYNE J:   Page 494 to 495.

MR DHANJI:   Yes.  The key sentence your Honour is referring to at the top of page 495 is where their Honours, in the joint reasons, said:

Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.

HAYNE J:   Should we act on the basis that that is an authoritative statement of relevant principle?

MR DHANJI:   Yes, your Honour.

HAYNE J:   Yes.

MR DHANJI:   The point that I am seeking to demonstrate is within M.  So M - and the plurality in M made the statements and set out the test and the test has been accepted since M v The Queen and applied consistently by – or accepted consistently by this Court and indeed courts of criminal appeal.  But before the resolution of the question in M what their Honours are getting at is that there had been different statements and their Honours had referred to various of the cases. 

But what we see in the minority reasons is a demonstration of the difficulty that led to their Honours, in the plurality, setting out what they described as the authoritative guidance.  Where I was about to take your Honours was to page 525 of M, at page 75 of the book. This is in the reasons of his Honour Justice McHugh in the paragraph beginning about point 2. His Honour says:

In my opinion, the correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused’s guilt.

That is his Honour’s view of the test.  Then his Honour goes on to be critical of the alternative.  His Honour says:

To ask whether it was open to the jury to be satisfied of the accused’s guilt beyond reasonable doubt is to come perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused.

Now, for present purposes, the reason I seize upon that is simply to demonstrate the views expressed that go to show that there is some ambiguity in the “open to the jury” test.  To apply the “open to the jury” test one has to apply that test in the light of what the plurality said in M. One cannot simply go and ask the question, was it open to the jury, because if one simply asks then answers that question one does not know quite what is being assessed. Is it something about sufficiency of evidence? Is it something just past sufficiency of evidence? So to go back to his Honour Justice Macfarlan’s reasons, his Honour speaks there, at 61, of the first aspect of the task being to determine whether:

it was open to the jury to be satisfied beyond reasonable doubt –

Now, that is a reference back, in our submission, to the way in which his Honour had expressed it in the opening paragraph of this aspect at paragraph 58, and your Honours will see at the bottom of application book 142 his Honour makes reference to section 6 of the Criminal Appeal Act, to SKA v The Queen and his Honour says, and this is at the top of page 143, the second line:

the question for a court of criminal appeal when considering such a ground of appeal is not simply “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that that accused was guilty” (M at 493 and SKA at [11]).  The Court is also required to conduct its own “independent assessment of the evidence, both as to its sufficiency and its quality” –

Transplanting those two sentences, what, in our submission, appears to be clear is that his Honour has regarded that first sentence, “whether [the court] thinks that upon the whole of the evidence it was open to the jury to be satisfied”, his Honour has taken that as to be the first question and his Honour takes the position that the court forming its own view is, in essence, the second question. 

The fundamental point made on behalf of the applicant in this case is that to frame them as questions that follow in that order is to, with respect, misinform oneself as to what the content of the “open to the jury” test actually is because one does not get inside the “open to the jury” test in M without the explication provided by the plurality.

When one goes to that explication, what comes clearly from M is that there is a first step, that is, the court forming its own view as to whether it is satisfied beyond reasonable doubt, and it is that view that then is a necessary step to forming any view as to whether it is open to the jury because, of course, if the court itself has a doubt, having formed its own view, then the court is obliged to enter a verdict of acquittal unless there is an explanation in the advantage that the jury had from seeing and hearing the witnesses.  But if that advantage does not explain the doubt that the court itself has then the court, of course, is obliged to acquit.

So the obligation on the Court of Criminal Appeal, which as your Honour, the presiding Judge, pointed out earlier is to determine whether it was open to the jury to convict, is one which requires that first step.  When your Honours look at what his Honour then does at paragraph 61, his Honour says, in the last line on page 143 – this is where his Honour has said in the opening:

It is appropriate however that I consider the first aspect of the task –

it does, with respect, beg the question as to how it could be that his Honour could not consider the entire task required and what part has his Honour left out.  But, moving on, his Honour, in the last sentence, says:

If that evidence was not capable of sustaining a conviction, it would be inappropriate to order a retrial on substantially the same evidence –

We have pointed out that Gerakiteys and Taufahema are cases not concerned with the first limb of section 6, but rather were appeals based on matters that would not preclude orders for a new trial.  What is important is that his Honour reaches the end of the heading in relation to ground 10 without having at that point expressed any clear determination as to ground 10.  This is at application book 144.  His Honour goes on in a separate heading to deal with the question of “Whether a Retrial should be ordered”.

Now, that separate question is a question that is relevant in the context of other successful grounds of appeal because, of course, having been successful on other grounds of appeal the question that then arose for the court was whether it should exercise its power pursuant to section 8 of the Criminal Appeal Act to order a new trial.  Now, the paragraphs that follow refer to his Honour’s summary of the evidence and then particularly at paragraph 64 his Honour deals with the evidence of AC.  His Honour says:

In a practical sense the Crown’s case rested, and would rest again at a retrial, substantially on the evidence of AC.

Your Honour will appreciate that the section 6 question on the entitlement to acquittal is not at all concerned with what would happen at any retrial.  What would happen at any retrial is relevant only to a section 8 question.  So to the extent that the respondent relies upon things that are said within these paragraphs, his Honour, in our submission, has moved plainly to section 8 considerations without, in our submission, having finally disposed of ground 10, the appeal brought under the first limb of section 6.  That becomes, indeed, more plain where his Honour says, at paragraph 65:

In reaching these conclusions I have taken into account the hurdles the Crown would face at a retrial –

It is all geared towards the same issue.  The other telling aspect in ‑ ‑ ‑

HAYNE J:   I see that your time has gone, Mr Dhanji, so what is it else that you would wish to add?

MR DHANJI:   Simply this, your Honour, that the matter, in our submission, is of some importance because it is relevant both to the function that the Court of Criminal Appeal performs, the necessity that it exhaust its jurisdiction.  It is also potentially relevant to the content of the reasons to be given by a court of criminal appeal because even if one was to take the approach that this was a case in which his Honour did apply the test, there is a distinct, in our submission, lack of transparency.  Once one sees that lack of transparency there is an impossibility of – and this is probably our first point – of actually determining that test has been properly applies.  I do see the light.

HAYNE J:   Yes, thank you.  We need not trouble you, Mr Pickering.

The relevant principles to be applied by the Court of Criminal Appeal in determining this appeal are authoritatively stated in M v The Queen (1994) 181 CLR 487. In this application, the determinative issue is whether it was open to the jury on the whole of the evidence to conclude that guilt was proved beyond reasonable doubt. In particular was this a case in which the appellate court should have concluded that guilt was not proved beyond reasonable doubt. In our opinion there is no reason to consider that the interests of justice, either generally or in this particular case, require a grant of special leave to appeal. Special leave is accordingly refused.

The Court will adjourn to 2.15 on Tuesday next, 9 October in Canberra.

AT 12.22 PM THE MATTER WAS CONCLUDED