Walker v The Queen S149/1993 [1994] HCATrans 156 (7 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S149 of 1993

B e t w e e n -

GORDON HOWARD WALKER

Applicant

and

THE QUEEN

Respondent

Second Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 2.02 PM

Copyright in the High Court of Australia

MR B.J. SKINNER: May it please Your Honours, I appear for the applicant in this matter. (instructed by A.C. Knibb Kaine & Associates)

MR N.R. COWDERY, QC: May it please the Court, I appear for the respondent in this matter with my learned friend, MR P.G. BERMAN. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (NSW))

BRENNAN J: Mr Skinner.

MR SKINNER: Your Honours, the relevant passages of the application book appear at pages 18, 19 and 20 and not at pages 8, 9 and 10, as I have erroneously referred to in my outline. This case, Your Honours, stemmed from an application to the New South Wales Court of Criminal Appeal primarily on the basis that a jury had brought in a verdict which was no more than a compromise verdict. By a majority decision the Court of Criminal Appeal accepted that submission and quashed the one conviction which arose out of an indictment containing three counts. There was no complaint to the Court of Criminal Appeal about the directions made by the trial judge; it was simply an appeal based on inconsistent verdicts.

The court having quashed the conviction then went on to consider whether there should be a retrial. It is on that point and that point alone that this application for special leave is made. The special leave point is as succinct as the suggestion made on behalf of the applicant that the Court of Criminal Appeal misconceived its function in deciding whether there ought to be a retrial.

True it is that the Court of Criminal Appeal considered the nature of the Crown case and made an independent review of the evidence following the line of cases from the High Court commencing with Palmer v The Queen, followed by Morris v The Queen and Chidiac v The Queen, both of which are on my friend's list of authorities. There is no attack made on that approach. Indeed that test is now, we would respectfully accept, well-founded. The point of misconception, we respectfully submit, arises because of additional elements to which the High Court referred in the decision in the Director of Public Prosecutions for Nauru v Fowler, [1984] HCA 48; 154 CLR 627. The succinct test, Your Honours, appears at page 630 at about point 5 where, in a joint judgment, this Court held that:

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had.

The Court said:

In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction -

We accept that the Court of Criminal Appeal carried out that task correctly in this matter. The High Court then went on to say that:

In the present case -

that is, the Fowler case -

the admissible evidence given at the trial satisfies this test.

Their Honours then went on to say:

Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interest of the individual accused.

TOOHEY J: But here, Mr Skinner, you have a section, do you not, that either directs or at any rate points the Court in the direction which it should go in considering whether there is to be a new trial - section 8.

MR SKINNER: Section 8, that is so, Your Honour, but we respectfully submit that as part of that section as part of the general policy that it is not sufficient to merely test the question of a retrial simply against the nature and quality of the prosecution evidence.

TOOHEY J: No, I was not suggesting that, I was just wondering whether you draw any comfort from section 8 or whether it tends to be against you in the circumstances of this case. I must say I have a little difficulty with the subsection It provides that:

On an appeal.....the court may.....order a new trial.....if the court considers that a miscarriage of justice has occurred, and that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order-

MR SKINNER: Yes, it is in that territory, Your Honour, that we submit you then have to incorporate or exercise the discretion which the section gives to consider any other factors. We simply point to a misconception or misapplication on the part of the Court of Criminal Appeal because it simply stopped. Having found that there had been a breach, it then applied the test as I indicated in Palmer and Chidiac, and then went no further in the exercise of that discretion.

The second limb on the application for special leave that we make is that this Court - it would be of assistance in the administration of justice for there to be some enumeration of the matters which the Court ought to take into account in considering that subsection.

BRENNAN J: Was not this appeal allowed because there was thought to be an inappropriate compromise?

MR SKINNER: Indeed, Your Honour, that was the sole ground.

BRENNAN J: So that the conviction may have been based simply on the footing that, "Well, some wanted to convict, some wanted to acquit, and therefore one out of three will be the solution".

MR SKINNER: Yes, that is so.

BRENNAN J: Well now, that really amounts to a view that there was no proper trial.

MR SKINNER: Indeed.

BRENNAN J: Well, if there was no proper trial the prima facie order that should be made is that there be a proper trial.

MR SKINNER: Your Honour, there does not seem to be any support for Your Honour's proposition that prima facie there ought to be a new trial anywhere in the reported cases. Indeed, in a dissenting judgment of His Honour Justice Murphy quite the contrary was expressed by His Honour in the decision of King v The Queen, [1986] HCA 59; 161 CLR 423, in particular at page 426. His Honour rejected, if I may say so with respect, Your Honour's proposition in this sense, that His Honour put it succinctly at page 426 point 8 where His Honour said:

A new trial is not the inevitable result of a successful appeal against conviction.

So, we would respectfully submit to Your Honour there is no prima facie basis for a new trial. It is a matter in which discretion has to be exercised.

BRENNAN J: Of course it does, but that is what I was putting to you, that when the conviction is set aside on the basis that there has been an improper compromise - not of inconsistent verdicts but an improper compromise - that is tantamount to the Court saying, "There has been no proper consideration of this case".

MR SKINNER: I accept that, Your Honour.

BRENNAN J: And, if that is the underlying principle on which the verdict is set aside, then the consequence of a sound exercise of judicial discretion should be to order that a proper trial be held.

MR SKINNER: That is the matter which we seek to have ventilated by way of this application, and the matters which we would raise which would be contrary to, following that it were prima facie, is that that situation is of no fault of the accused and that that ought to be taken into account, together with a series of other factors which I have enumerated in the outline of submissions. So that we respectfully submit that there is no guidance as to what proper course should be adopted in a situation, as Your Honour has properly outlined.

In other words, the number of decisions in which an improper compromise occurs, of course, are very rare and we respectfully submit that His Honour failed to take proper account of the factors in deciding that there ought to be a retrial. In other words, we do not accept, Your Honour, that just because there has not been a proper trial means, ipso facto, that there ought to simply be a new trial as a matter of course. In this particular matter there were peculiar features of the case which, we respectfully submit, mitigated against the very concept of a retrial. The applicant is a resident of Queensland; he had no contact with the complainant for a number of years; he had travelled from that State to undergo a committal hearing; a trial which had miscarried; he had cause to successfully prosecute an appeal; the offence itself, or the remaining offence, is alleged to have occurred between 1 June 1985 and 1 September 1985. No complaint was made until 1991. The offences have always been denied. It is now some nine years since this offence was said to have been committed. There is expense and time to be taken into account in a further trial and, as I indicated at the outset, this was a miscarriage through no fault of the applicant.

In our respectful submission, the type of considerations which were first considered by the Court of Criminal Appeal in Tasmania as early as 1981 are a handy guide to the issue of consideration of retrials. In Cheatley v The Queen, [1981] TASRp 13; 1981 Tas R 123, commencing at page 137, His Honour Mr Justice Everett, in supporting a finding that a second trial ought not to be ordered on the grounds of discretion, having taken into account all relevant facts and circumstances, added to reasons given by the Chief Justice and Justice Nettlefold a number of factors. I will not go through each of the four that he lists on page 138, but he, certainly in general terms, considered the cost to the State of a new trial; the costs were substantial and there was the question of the public interest.

TOOHEY J: But that was really against a background that the prosecution was perhaps unlikely to succeed, and that is a different area, is it not? One can understand where, at the end of the day, it appears that there is insufficient evidence to warrant a conviction, a court would simply quash the conviction and not order a retrial.

MR SKINNER: That is absolutely correct, Your Honour.

TOOHEY J: But that is not the situation here, is it?

MR SKINNER: No, that is so, and that is why I distinguish the approach taken in those cases, including King v The Queen. The situation I think in Chidiac is the same. The position in the other decision of this Court relating to that matter, Morris, they were all examples of what Your Honour has put.

TOOHEY J: Well then, it tends to perhaps shift the area of inquiry more from the case itself to the consequences personal to the applicant if there is to be a retrial, plus the consequences - personal, financial and otherwise.

MR SKINNER: Yes, I accept that, Your Honour.

TOOHEY J: But that in turn then tends to move it into the area of discretion, does it not?

MR SKINNER: It does, Your Honour, but in the instance of this application there does not appear to have been any consideration given to those other matters which, I respectfully say, emerge from the decision in Fowler.

TOOHEY J: Mr Skinner, can I just interrupt you. When the matter was argued before the Court of Criminal Appeal, the conviction was challenged by reason of the various considerations you have referred to. To what extent was the court addressed as to the appropriate order to be made if the appeal were otherwise successful?

MR SKINNER: The submissions which I made were that the conviction be quashed. Justice Wood in the course of the hearing made it abundantly clear in answer to that submission that the course that would be followed by the court, if I were successful, would be that there would be a retrial. There was no consideration as to the other factors, or indeed to there being any other factors which would be taken into account, and indeed, if one takes the application of the discretion as it has been put on occasions where it is said the Crown must establish that there ought to be a retrial, it did not go that far. Certainly, Justice Wood made it very clear that even if the compromise verdict submission was upheld that there would be automatically a retrial, having regard to the first limb of the Fowler test.

I should perhaps point Your Honour to why it is that we say that there was no consideration of any other matters, and that arises because, at page 18 of the application book, at line 12, in the leading judgment His Honour says:

The question whether there should be a re-trial depends on the independent submission that, having regard to the sufficiency and quality of the evidence, the verdict was unsafe and unsatisfactory and should now result in an acquittal.

We respectfully say that is a misinterpretation of Fowler.

As to the public policy aspects of this case, in answer to what His Honour Justice Brennan has raised, we submit that there is a public policy matter in this application because of the difficulty in dealing with compromise verdicts, and whether or not there should be an automatic retrial based on that first leg. That encapsulates what I need to put to Your Honours.

BRENNAN J: Thank you, Mr Skinner. We need not trouble you, Mr Cowdery.

In this case the verdict was quashed because the majority of the Court of Criminal Appeal was of the view that "the verdict possesses the features of an improper compromise". At the same time, all members of the Court of Criminal Appeal were of the opinion that the evidence was sufficient to support a conviction of the appellant on the third count in the indictment. It was on that count that the order for retrial was made. That was a discretionary decision.

Having regard to the opinion of the Court of Criminal Appeal the discretion cannot be said to have been improperly exercised. There is no question of law which warrants a grant of special leave to appeal to this Court from the order for retrial. Accordingly, special leave is refused.

AT 2.21 PM THE MATTER WAS ADJOURNED SINE DIE