Hawkins v The Queen H17/1994 [1995] HCATrans 78 (17 March 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H17 of 1994

B e t w e e n -

ANDREW JOHN HAWKINS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

MASON CJ

DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1995, AT 10.38 AM

Copyright in the High Court of Australia

MR A.G. MELICK: May it please the Court, I appear with my learned friend, MR R.A. BROWNE, for the applicant. (instructed by Director of Legal Aid, Tasmania)

MR D.J. BUGG, QC: I appear with my learned friend, MR J.N. PERKS, for the respondent, if the Court pleases. (instructed by Director of Public Prosecutions (Tasmania))

MASON CJ: Mr Melick.

MR MELICK: Your Honours, on 27 October 1990, a 16-year-old youth who has been diagnosed by all examining psychiatrists, including the Crown's, as having at least one mental disease at the relevant time, shot and killed his father for no apparent reason. He has faced three trials for murder and through no fault of his own has not had one trial according to law. At all times upon his trials and four appeals, the Crown has submitted, and except for the last two appeals, had accepted what are now seen to be incorrect propositions of law. And yet still they will not accept a verdict of manslaughter. Despite the fact that his third trial was almost three years ago, and the only trial upon which evidence of mental disease was allowed to go to the jury, there was no verdict.

When this matter was last before the Court of Criminal Appeal, three appeals and over two years since his third trial, the majority of the Court of Criminal Appeal failed to properly exercise their jurisdiction and ordered the appellant to stand trial for a record fourth time. In so doing, they failed to apply the correct principles when considering the provisions of sections 402, 403 and 404 of the Criminal Code and we seek the leave of the Court to rectify those errors.

It would seem that the majority of the Court of Criminal Appeal are driven by the notion that to them, and without the benefit of a balanced trial, there seems to have been a strong case for premeditated murder, but have ignored the following: firstly, a strong case is one, and not the paramount, of many considerations to be taken into account. They presume that two verdicts for murder have pointed to a lack of veracity or credibility on the part of the accused and his witnesses. But on both trials the wrongful exclusion of psychiatric evidence meant that both the Crown and defence cases - that is premeditated murder or a suicide gone wrong - must have led to convictions for murder. Therefore no conclusion should be drawn by the Court from previous verdicts. As already stated, the only trial upon which evidence of mental disease was allowed to go to the jury - and despite the fact the judge refused to give a Hawkins' direction - the jury was a hung jury.

Now, it is not appropriate today on a special leave application, and nor would there be time, to analyse in depth the evidence of a strong Crown case. We submit it can be shown that much of the evidence - that is on the appeal proper - is a double-edged sword when juxtaposed with the psychiatric evidence, especially the bizarre behaviour on the part of the accused after the relevant events upon which the Crown relies so heavily. The only trial at which those events were discussed by a psychiatrist or a psychiatrist cross-examined on those events, the jury was hung.

Your Honours, it becomes relevant to look at some of the provisions of the Criminal Code. I firstly take you to section 402(3). The interactions of sections 402 and 403 of the Code are not straightforward but if one looks at 402(3) it says:

Subject to the special provisions of this Chapter the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.

Now, his Honour the Chief Justice, at page 128 of Cheatley v The Queen (1981) Tas SR 123, analysed section 402(3) in the following terms:

I do not consider that no substantial miscarriage of justice has actually occurred and, in my view, the appeal should be allowed. In those circumstances, by virtue of the Criminal Code, s.403(3), it follows that the Court should order that the conviction should be quashed and a verdict of acquittal entered unless the Court is persuaded that it should of its own motion order a new trial.

So the starting point is, the Court should be persuaded to order a new trial. The proposition is not, which seems to be relied upon by the Crown as stated in Ward's Case (1980) 3 A Crim R 171, that the ordinary course of events would be that there would be a new trial. I specifically refer to the comments of the court in that case at page 195, last paragraph, where it states:

In ordinary circumstances when a miscarriage of justice has occurred through wrongful admission of evidence, a new trial will be ordered, but -

et cetera. Those principles are clearly in conflict with the comments of his Honour Mr Justice Everett in Cheatley - - -

GAUDRON J: But it is no doubt the fact that this is not a case in which a verdict of acquittal would be entered.

MR MELICK: I am sorry, your Honour?

GAUDRON J: There would not be an outright verdict of acquittal entered in a case like this.

MR MELICK: No, but we have always - the applicant has always been prepared to plead guilty to manslaughter, as it requested the Crown on several cases to accept such a verdict.

GAUDRON J: But whether or not that is so, we cannot start from the basis, really, that it is a case in which one ought to expect a verdict of acquittal.

MR MELICK: That is correct, your Honour, except of course acquittal on the grounds of insanity.

GAUDRON J: Yes.

MR MELICK: It is common ground there are only three possibilities: murder, insanity or manslaughter, and there is no suggestion of complete acquittal. But what the Crown seems to be submitting, and it seems to follow from the reasons of the majority of the Full Court, that in the ordinary cases where there has been a miscarriage of justice, a new trial will be ordered unless the court is persuaded otherwise. We say the test is the other way round; the court has to be persuaded the only appropriate course is order of a new trial and that, of course, are the exact words of section 404(1) of the Criminal Code.

We also refer your Honours to the comments of his Honour Mr Justice Everett in Cheatley which appear at page 137, the last paragraph, which are in clear conflict with the passage quoted from Ward's Case:

My conclusion is that there is no presumption in favour of a second trial being ordered when an appeal succeeds, and that the discretion of the court must be exercised on a consideration of all the relevant facts and circumstances.

We rely, of course, upon the comments made by his Honour Justice Murphy, page 426 of King's Case [1986] HCA 59; 161 CLR 423, where his Honour, when considering a similar provision of the New South Wales Criminal Appeal Act 1912 says:

Under s.8(1) of the Criminal Appeal Act (N.S.W.), a new trial should only be ordered where it would more adequately remedy the miscarriage of justice than any other order the court is empowered to make.

A new trial is not the inevitable result of a successful appeal against conviction. The onus rests squarely with the prosecution to show the court that a new trial is the most appropriate remedy.

And adopts those matters discussed by his Honour Mr Justice Everett in Cheatley v The Queen.

As we understand, the Crown seeks reliance on the comments at page of 195 of Ward's Case and we say although that is a decision of the New South Wales Court of Criminal Appeal it is in conflict with the Tasmanian Court of Criminal Appeal in Cheatley's Case and his Honour Justice Murphy's comments in King's Case.

There also has to be considered the provisions of section 403(2) of the Criminal Code and we rely upon the principles enunciated in Fowler, Reid, and Au Pui-Kuen's Case which I understand the Court is familiar with, and I rely upon the matters raised in the submissions.

We also criticise or complain of the Full Court's failure to give reasons. There is a clear requirement to so do. It is established in Pettit v Dunkley and many cases thereafter, and more recently in Sousemezis' Case. We say it is a red herring to say it is inappropriate, if there is to be a retrial, not to publish reasons. The reasons given by his Honour Mr Justice Crawford could not be more damaging and they have already been reported in two of the three daily newspapers in Tasmania. If they do not give reasons we submit this Court should intervene in accordance with the principles set down in Jones v The Queen [1989] HCA 16; 166 CLR 409 at page 411 where, in the final paragraph, this Court said:

A court of criminal appeal has jurisdiction to hear and determine all grounds of appeal which are raised and argued in support of an appeal by a convicted person.....As it is the duty of a court of criminal appeal to exercise its jurisdiction when that jurisdiction is invoked, the court must hear and determine each ground of appeal -

et cetera. This Court made it quite clear in such circumstances they would intervene, although there was a difference between the majority of the Court and your Honour Justice Deane as to the appropriate manner to rectify the error.

MASON CJ: Why do you say that they have failed to give reasons? After all, what is involved is the exercise of a discretion after taking into account factors which are obvious.

MR MELICK: It is only obvious from the judgment - there were three judges. The only judge who considered all matters that were put to the court in his judgment was the learned President of the court who would have ordered a substituted verdict of manslaughter. The other two judges concentrated on one aspect, and one aspect alone. They said because it appears to us it is a strong case, we shall order a new trial. They failed to give reasons for the non-acceptance of the other matters, and when they failed to so do, how can this Court then determine, one, whether they have actually given consideration, or adequate consideration, to those matters when trying to balance them with the other matters. We say that is a failure to give reasons upon matters which they were required to consider. It is a secondary matter, of course, your Honours, in relation to the fact that we say they have not exercised the correct principles.

Section 403 of the Code requires them to consider a lot of other matters and we say the court seems to have placed pre-eminence on the strong Crown case, and that is the wrong test.

MASON CJ: I do not follow your submission that section 403 requires them to consider other matters. What are the other matters that you have in mind?

MR MELICK: Those matters as outlined in Fowler's Case, Reid's Case and Au Pui-Kuen's Case, your Honour, if I could take you to each of those very briefly. I will deal with the matters specifically put in this case shortly. In Fowler's Case [1984] HCA 48; 154 CLR 627 at page 630, the second complete paragraph on that page, starting, "The power to grant a new trial is a discretionary one and in deciding" et cetera. Then it says:

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 interests of the individual accused.

Then they set out the various matters that they took into account there. And said:

These were matters that should have been weighted by the Supreme Court -

Now, in Reid and Au Pui-Kuen's Case, which were successive judgments of the Privy Council in (1980) Appeal Cases, that Court said, firstly in Reid's Case at page 350, line B:

In cases which fall between these two extremes there may be many factors deserving of consideration, some operating against and some in favour of the exercise of the power. The seriousness or otherwise of the offence must always be a relevant factor -

et cetera, and I take your Honours down to line D - - -

MASON CJ: But that comes back to what I said to you. These are factors which are obvious in this case. It is inconceivable that the judges did not apply their mind to these factors. We know the majority concluded that the Crown case on murder was strong; the matters of, as it were, personal hardship which tend to weigh in the balance the other way were obvious.

MR MELICK: Your Honour, we say they were so obvious that if the Court of Criminal Appeal had played proper consideration to them they must have agreed with the decision of the learned President.

GAUDRON J: Surely this is a case where either decision is fairly open.

MR MELICK: I would submit not, your Honour. It is very difficult, of course, to go back and analyse each particular case and say this one weighed against those cases, that is obviously an inappropriate method, but I have been unable to find any - - -

GAUDRON J: It must be open to a Court of Criminal Appeal to order a new trial where there is sufficient evidence to justify a conviction.

MR MELICK: Your Honour, yes, so long as they go according to correct principles and also a correct analysis of the facts, and I wish to take your Honour to the decision - - -

GAUDRON J: So we have to go to the question whether the factors were taken into account, obvious factors, which clearly would have been.

MR MELICK: There was nothing apparent from the judgment of his Honour Mr Justice Crawford or Mr Justice Zeeman which shows those matters were taken into account. And what is more, we say they, one, applied the principle incorrectly - that is they gave pre-eminence to the strong Crown case, and secondly, are factually wrong about some of the matters which I now wish to take your Honours to.

If I could take your Honours now to - firstly, at paragraph 10 of our submissions we not the matters that were put to the Court of Criminal Appeal which should be taken into consideration by them when considering whether or not to order a retrial. There is one further ground that was not mentioned there that should have been apparent to the Court of Criminal Appeal. On all three of the trials the applicant endured, he had the option of an unsworn statement. On his first trial he in fact made an unsworn statement and then gave sworn evidence. The Crown, for reasons known to themselves, chose only to cross-examine him on peripheral issues and failed to cross-examine on any central issues but at the two subsequent trials tendered the unsworn statement and the cross-examination. There is now no longer the right of an accused person in Tasmania to make an unsworn statement.

If this goes to a fourth trial and the Crown chooses, as they are entitled to, not to produce the evidence of the admissions against interest at the first two trials - that is the unsworn statement and the cross-examination - the accused would then be in a position of having to give sworn evidence of events that occurred some five years before, when he was a mentally disturbed 16-year-old, and we would say that would not be in the interests of justice or fair to the accused to require that situation. That is another matter that was not taken into account by the court and I must admit it was not put to the court by counsel.

Now, if your Honours look at the judgments - I will not take your Honours to his Honour Mr Justice Cox's decision because that is obviously - we say his Honour Mr Justice Cox has made the correct analysis of the evidence. If you look at his Honour Mr Justice Crawford's decision at page 23 of the application book his Honour says firstly - these are matters he took into account:

Guilty of manslaughter was a most unlikely verdict.

This is upon the trial over which his Honour presided, "was a most unlikely verdict" on the directions given, because his Honour failed to give a Hawkins' direction. The third paragraph on that page he then says:

The evidence at the trial was strongly suggestive of premeditated murder, including evidence that he shot his father dead inside a pine plantation, leaving his body concealed therein. The validity of the psychiatric evidence that raised the possibility that he may not have had the specific intention.....depended mainly on his veracity and on relatively little objective evidence.

None of these matters have been properly tested before any court as yet with an appropriate direction. He then says it was:

in my view an extremely unlikely version of the events.

And then says nothing about the weight he has given to other factors but merely says he is -

unpersuaded that it is in the interests of justice that this Court should substitute a verdict of guilty of manslaughter.

That is not the correct test. The correct test is, I am persuaded that the most appropriate course is the ordering of a fourth trial. He relies above on the evidence:

he attempted to sell his father's assets and made sexual advances to his father's girlfriend according to the evidence -

and makes no reference to the psychiatric evidence on the trial before him as to an explanation, a psychiatric explanation for those events. He has not address his mind to the matters of a fair trial, as did his Honour Mr Justice Cox, and one of the matters his Honour Mr Justice Cox was concerned about was publicity. There is no suggestion that either he or Mr Justice Zeeman have addressed their minds to the community protection in relation to this matter. It is not as though this was the sort of matter that was likely to occur again and there is no suggestion of any balancing exercise on the part of his Honour Mr Justice Crawford. He appears not to even exercise his discretion about whether or not there should be a substituted version. What he says is, it is more appropriate a matter for the DPP, and we say he has abrogated his responsibility and failed to exercise his jurisdiction, because what he says is:

Whether, after having regard to all the history.....and all other relevant considerations, it should be determined that a fourth trial is undesirable and should be avoided is I think more appropriately a decision for the Crown to make.

We say that was the very decision the Court of Criminal Appeal should have made and not left it to the Crown.

His Honour Mr Justice Zeeman - an even shorter address on this point - at page 27, once again the only question he considered was whether or not the court should substitute a verdict of manslaughter and did not exercise his mind, as the test laid down by section 404, and that is is the most appropriate decision in all the circumstances a retrial.

If it please the Court.

MASON CJ: Thank you, Mr Melick. The Court need not trouble you, Mr Bugg.

The question whether a verdict of manslaughter should have been entered was a question which was required to be dealt with by the Court of Criminal Appeal by way of the exercise of a judicial discretion. We are not satisfied that in dealing with the question in the way it did the Court of Criminal Appeal made any error in point of law. The application is therefore refused.

MR MELICK: If the Court pleases.

AT 11.01 AM THE MATTER WAS CONCLUDED