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High Court of Australia Transcripts |
Office of the Registry
Brisbane No B10 of 1996
B e t w e e n -
THE QUEEN
Applicant
and
SHANE ALLAN BARLOW
Respondent
Office of the Registry
Brisbane No B15 of 1996
B e t w e e n -
STEPHEN RAYMOND ALEXANDERSON
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Brisbane No B21 of 1996
B e t w e e n -
ALAN DAVID McQUEEN
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Brisbane No B22 of 1996
B e t w e e n -
GLENN PATRICK FARR
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
BENNAN CJ
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON THURSDAY, 20 JUNE 1996, AT 2.32 PM
Copyright in the High Court of Australia
MR A.J. RAFTER: If the Court pleases, I appear for the respondent Barlow. (instructed by J.A. Hodgins, Legal Aid Office (Queensland))
MR J.A. GRIFFIN, QC: May it please the Court, I appear with my learned friend, MR P.J. DAVIS, for the applicants in the second appeal. (instructed by J.A. Hodgins, Legal Aid Office (Queensland))
BRENNAN CJ: We can hear all of these applications together I should think, can we not?
MR BYRNE: I would believe so, your Honour, yes.
BRENNAN CJ: Yes, Mr Byrne.
MR BYRNE: If I am able to begin with the matter of the Queen v Barlow. In that matter, our submission is that the interpretation of the party provisions of the Code adopted by the Court of Appeal in the present matter has introduced a concept of strict liability to the substantive criminal law. Under the regime which exists on the interpretation now prevailing, the jury or, as it has been called, the constitutional tribunal which alone can find an issue of fact against a prisoner, to use the words of Justices Dixon and Evatt in Brennan v The King, such a tribunal is required to bring in the same verdict of guilt against all parties involved in a criminal enterprise.
That is so under the prevailing interpretation by the Court of Appeal regardless of factors such as the varying roles played by each person in the criminal enterprise, the individual accused person's state of mind, the different evidence admissible against each accused person, and whether or not all parties are tried together or separately. We submit respectfully that such an approach is not simply surprising, but it brings about injustice and should be found, therefore, to be incorrect. We say the interpretation in the present case has the potential to bring about injustice not only to individuals accused of criminal offences, but also to the community represented by the Crown.
BRENNAN CJ: The question is, what does the Code provide?
MR BYRNE: That is so. The Code, we submit, has always been understood throughout this country as providing for different degrees of criminal responsibility for different parties acting in concert under section 8 of the Queensland Code. That is so. I can take your Honours shortly to cases that we say illustrate that proposition, but before doing so, may I make the submission that on the current formulation, if there were a joint enterprise involving three persons, to call them A, B and C, to assault a person, in the course of that assault, A intentionally kills the victim D, then we have varying possible results and various possible degrees of moral culpability and responsibility.
If, in a trial situation, A admitted the intentional killing; B, on the other hand, made admissions which a jury may or may not, depending on the view they took, regard as bringing him within the subjective test as set out in McAuliffe v Reg; and C, on the other hand, denied any knowledge of intentional doing of grievous bodily or that being part of the plan, it is clear on the current interpretation that a jury, if A was found guilty or pleaded guilty, would have to return the same verdict, that is, of murder in respect of B and C. There is no lower or middle ground available. We say that is most clearly demonstrated in a simple statement by the Chief Justice in the present matter. That can be found at page 113 of the record at line 15, his Honour says this:
Section 8 is concerned to attribute criminal responsibility for the same offence as that which, in the event, is found to have been committed by the principal. It is the "offence" which "is committed" that is selected as the offence which the accessory is deemed to have committed.
That is the interpretation we seek to attack here.
BRENNAN CJ: How is that at odds with the provisions of section 8?
MR BYRNE: It is at odds, we say, in relation to the interpretation of section 8 in other co-jurisdictions in Australia. As recently as 1987 in Western Australia, Mr Justice Kennedy said "it was now settled", but pursuant to sections 7 and 8, which are identical in Western Australia as Queensland, a principal may be found guilty of murder and the other party of manslaughter. Now, that, we say, is not a surprising result - - -
GUMMOW J: But how does it come out of the words, the words in the sections?
MR BYRNE: It comes out of the words, we say, because what section 8 is concerned with is extending criminal responsibility to parties involved in a joint enterprise. We say a proper and just interpretation of section 8, which is available under the wording, is for an accessory to be guilty of included offences, that is, his responsibility is extended to any offence which is a probable consequence committed in the joint criminal enterprise. It does not have to be deemed to be that committed by the principal.
BRENNAN CJ: You said Justice Kennedy referred to sections 7 and 8, not just to 8?
MR BYRNE: Yes, not just to 8.
BRENNAN CJ: One can understand that perhaps in the last paragraph of section 7, but does one get it out of section 8?
MR BYRNE: Yes, your Honour.
BRENNAN CJ: Perhaps you ought to take us to what Justice Kennedy said, and if you are wanting special leave, I take it this is on the grounds that there is a conflict now between the Code States as to the operation of section 8?
MR BYRNE: That is so, and there is also a conflict, we say, between the interpretation in Queensland and the common law, whereas the other Code States are in conformity with the current interpretation with the common law.
KIRBY J: It is always open in New South Wales for a jury to return a verdict of manslaughter, but I think that is by the Crimes Act.
MR BYRNE: That is so, yes.
KIRBY J: So it is not common law, but it is by the Act.
MR BYRNE: I am sorry, it is a generic term, yes, as distinct from Code.
KIRBY J: But it is by specific provision in the Act in clear terms which is not actually there in the Code, but you say in Western Australia it has been so construed and that has the advantage that all people throughout the country are subject to the same regime. That is a serious matter.
MR BYRNE: Quite so. It has been interpreted that was in Tasmania as well, we submit. So Queensland does seem to, on our researches, stand alone so far as the important point, we say, of criminal responsibility for parties involved in joint enterprises.
BRENNAN CJ: You had better demonstrate it.
MR BYRNE: I will try to, your Honour. I have not included that recent statement by Justice Kennedy in the list of authorities, but it is in the case of Warren and Ireland v The Queen (1987) WAR 314 at 322. The full quote by his Honour is this - it is about line 23:
It is, moreover, now settled that a principal may be found guilty of murder and the aider or accessory guilty of manslaughter, on a joint charge of murder, whether it be s 7 or s 8 which is relied upon, so it is not the case that both must be found guilty of the one offence.
GUMMOW J: The next sentence is important.
MR BYRNE: Yes. That also has reflection in the Criminal Code and Tonkin; your Honour will see the reference there.
KIRBY J: If there is an ambiguity in the Code, leaving aside the discrepancy in the interpretations, what issue of principle lies behind the provision of the New South Wales Crimes Act and the interpretation Mr Justice Kennedy has adopted, namely, that people can be involved in joint criminal activities but to a different degree of culpability.
MR BYRNE: Yes, and the criminal statute, be it a Code or be it an Act, should be interpreted such as to reflect their moral and criminal responsibility according to their subjective culpability rather than deem them to be guilty of the offence committed by the principal.
BRENNAN CJ: Mr Byrne, if this case is to raise that question, it has to be a suitable vehicle for the purpose.
MR BYRNE: That is so, your Honour.
BRENNAN CJ: So you had better deal with page 175, had you not?
GUMMOW J: The last paragraph.
MR BYRNE: That appears to be in the dissenting judgment of his Honour Justice Dowsett.
BRENNAN CJ: That is right. Justice Dowsett says that there is not sufficient evidence to justify a conviction. This problem will not arise if Mr Rafter is able to demonstrate that Justice Dowsett is right on that point.
MR BYRNE: That is so, but what has happened to date is that the Court of Appeal has carried out, we say, the correct test in assessing whether the verdict was unsafe and unsatisfactory.
BRENNAN CJ: I know you say it, but you have got to make sure that this is a case which we are certain will raise the question that you say is the important question of law. This Court does not ordinarily engage, although this will arise no doubt in the following applications, in considering contested questions of fact where views can go either way.
MR BYRNE: Your Honour, it is difficult to answer that in the short time I have available, except by saying that on all the material which your Honours have, and that includes the reasons for judgment of the majority, there seems, in our respectful submission, to be enough to say that there was material on which the conviction could be safely based.
BRENNAN CJ: Perhaps you can identify very briefly what you say it is without reference to the appeal book. What are the elements of it? What did Barlow do?
MR BYRNE: The evidence against Barlow can be summarised, if I may, in this form. The case against him as presented by the Crown at trial was that there was obviously, on all of the material, a plan to seriously assault the deceased Vosmaer by a group of persons present at the two gymnasium sessions held at the prison that day. Barlow was present at both of the gymnasium sessions. There was no prison officer present at the first session. Again, the second session commenced without the presence of a prison officer, and it was after the commencement of that session that the respondent Barlow arranged for the person Vosmaer to come to the second session. He did that through a prison officer.
Barlow was seen by the person Bell with those who physically assaulted Vosmaer in the corner of the gym bench prior to the assault commencing. In the course of the assault, Barlow was seen by Bell with Anderson at the body of Vosmaer, Anderson crouching down and going through Vosmaer's pockets. Three persons then assaulting Vosmaer stood back to allow Barlow and Anderson to approach Vosmaer at that time. Barlow and Anderson were then seen by the witness Bell in a toilet looking through the window at the assault which was occurring. There was giggling, poking each other in the ribs, and the point was made at trial that that was a non-accidental viewing in that one had to take a specific position up steps to see through a window and that involved climbing up on a towel rail or wash basin.
At the end of the gym session, Barlow was seen by the witness Bradvica to shake hands with McQueen and another in the foyer area of the gymnasium. After all prisoners had been let out of the gym, Barlow was seen by Bell in the spine of B Block with McQueen, Farr, Nixon and Anderson shaking hands, patting backs and congratulating. We submit that that is a summary of the evidence, but it is on that which the majority of the Court of Appeal were satisfied, and we respectfully say properly satisfied, that there was a case to go to the jury in relation to Barlow on manslaughter if manslaughter had been open.
BRENNAN CJ: Yes. We need not trouble you further on this aspect of the application, Mr Byrne. Mr Rafter.
MR RAFTER: May it please the Court. The outline of the evidence that my learned friend Mr Byrne has just given to your Honours states the evidence and it is set out in the judgments of the Court and is reflected in the record but, equally, the criticisms of the evidence itself that appear in the judgment of Mr Justice Dowsett, who concluded that all of the verdicts in the case were unsafe and unsatisfactory, are valid criticisms, and in the part of the record that your Honour referred to a few minutes ago, page 175 of the record book, one sees that his Honour says, considering the evidence, there was never ever sufficient evidence to justify the verdict of manslaughter against Barlow. Although he arranged for Vosmaer to come to the gymnasium, he says that must be seen in the context of the friendship between Vosmaer and Barlow and of Vosmaer's responsibilities that he had for cleaning the gymnasium.
His Honour says there was simply nothing suspicious about Barlow asking Vosmaer to go to the gymnasium, and then he says, the balance of the case against Barlow was entirely dependent upon the evidence of Bell and Bradvica, two witnesses who Mr Justice Dowsett considered were unsatisfactory, and at the bottom of 175, his Honour concluded that Bell and Bradvica's evidence was unacceptable and the verdict, therefore, could not stand. Bell had previously sought to incriminate Barlow and then abandoned the allegation. Then his Honour goes on to say that:
None of Bell or Bradvica's evidence against Barlow was supported by any other witness.
So his Honour's conclusion that the verdict is unsafe and unsatisfactory is one that is entirely open, in my respectful submission, and would result in a finding that this case would not be a suitable vehicle for a determination on the construction of section 8 of the Criminal Code, especially as here where the Crown seek leave, and as I have referred in my outline, it is unusual, or the Court is careful before granting a special leave to the Crown to appeal against an acquittal. I have set out a passage from the Reg v Benz [1989] HCA 64; (1989) 168 CLR 110. In that case, Justice Deane refused special leave, as did Justices Gaudron and McHugh in a joint judgment. I have set out at page 4 of my written outline of argument the passage from Justice Deane's judgment, where his Honour refers - - -
KIRBY J: Is the principle that one should be especially cautious because of the double jeopardy elements?
MR RAFTER: Yes.
KIRBY J: But it is not an absolute prohibition, and this is arguably an important question. There is disparity between the approach to the Code in Queensland. Judges would be obliged to conform to the Court of Appeal view, and that really leaves the administration of justice in an unsatisfactory position. So do we not have to approach the matter with the caution stated in Benz and other cases, but also keeping our eye on our obligation of consistency?
MR RAFTER: That is what the passage in Justice Deane's judgment says, yes, your Honour, and the same approach was adopted by the Court in Van Den Bemd (1994) 179 CLR 137, where the Crown, once again, sought special leave to appeal from an order of the Court of Appeal granting a retrial. In that case, the Court again cited Reg v Lee, which was cited by Justice Deane in Benz (1950) 82 CLR.
KIRBY J: I think we are pretty familiar with the principle. The principle is well known, it permeates all the courts of the land, but would it not be that if the Court brought the matter up and dealt with this issue and found error that, nonetheless, then the Court, dealing with what should then happen, would have to take into account the events that have transpired since, namely, the acquittal of your client, and presumably the fact that he has been at liberty?
MR RAFTER: Yes. Well, he has not been at liberty, but the Court would have to take into account all of the circumstances that have transpired since.
BRENNAN CJ: For what purpose?
MR RAFTER: In determining whether or not the case was a suitable vehicle. In Van Den Bemd itself, the - - -
KIRBY J: He is still in custody, is he, on the primary offence that brought him into gaol in the first place?
MR RAFTER: Yes.
KIRBY J: I see.
GUMMOW J: Mr Rafter, has there been any subsequent decision from the Queensland courts since this instant decision on this question?
MR RAFTER: Yes, your Honour. The Court of Appeal has followed Hind v Harwood again in a case called Bryan v Peterson and Others. It was handed down only about a week or so ago. In that case, there was an acquittal for one of the appellants and an order for retrial in the case of another. In the end, my submission is that the case is not too dissimilar from the situation that occurred in Van Den Bemd, where the outcome of the case really depended upon the application and interpretation of words in the section of the Code. In that case, it was section 23, and the Court concluded, refusing special leave to the Crown, that it was essentially one of statutory construction the answer to which did not depend upon an important point of principle.
As the Court also said in Van Den Bemd (1994) 179 CLR 139 - this is in the joint judgment - that the words in the section were inherently capable of bearing the interpretation placed on them by the majority in the Court of Appeal. The same applies to this particular case where the words in section 8 are clear. The section deems parties to a plan guilty of the offence once an offence is committed.
The applicant's argument includes this, that the interpretation of section 8 is contrary to modern concepts of criminal responsibility, and I have said in my written outline of argument that if that be so, the solution is to do as Mr Justice de Jersey suggested in Reg v Jervis itself and bring about amendments that accord with the common law. Those are my submissions, your Honours.
BRENNAN CJ: Yes, thank you, Mr Rafter. We will hear the remaining applications before we rule upon the first application that has been heard. Mr Griffin.
MR GRIFFIN: If the Court pleases. This was a most unusual case in terms of the way in which the accused were located in the court room during the trial. They were subjected to the most unusual and, we would say, extreme security measures for the whole of the trial which lasted for some four weeks. In the context of those unusual security measures, it is submitted that their conviction was based on the evidence of three other prison inmates. Two of these three had previously given sworn evidence, the effect of which was that they had not seen the applicants commit or be involved in the murder of Vosmaer - they were Bradvica and Meninga - and the other, Bell, had previously given a sworn statement to a similar effect, that is, that he was away from the place where the incident occurred and he did not see anything and, in particular, did not see these accused involve themselves in this incident with Vosmaer.
Because a violent incident involving the applicants had occurred at one of the earlier appearances in the Magistrates Court, the trial judge had ordered special security to be implemented at the trial. The details of that special security are set out in an affidavit which has been filed and which I understand your Honours have seen. It is the affidavit of Peter Samuel Russo, and - - -
KIRBY J: But is not the position there was an incident; therefore the provision of security was understandable and perhaps reasonable; that it has to be left to a very large degree to the discretion of the judge; that whatever we individually would have done, we have got to look at it as a matter of principle; but the correct principles appear to have been taken into account by the Court of Appeal. They recognised that there is a discretion and they left it to the sense of the judge. What more can they say or we say?
MR GRIFFIN: Your Honours, we say that it was not within the discretion of the trial judge to apply the kind of restraints that he applied to the applicants in this case.
KIRBY J: Just remind us. They were manacled, were they? They were put in some perspex - - -
MR GRIFFIN: They were put in a perspex cage, or a dock, a special dock, which was built for the purpose of the case which, of course, demonstrates in itself how unique the arrangement was. There is a photograph of it annexed to Mr Russo's affidavit. It is taken - - -
BRENNAN CJ: To answer Justice Kirby's question, they were manacled in the sense that their arms were pinioned by the vests which they were wearing, is that not right?
MR GRIFFIN: That is right. So it was not just handcuffs. They had body belts and the handcuffs were tied to the body belts so that they could not move their hands except to - - -
BRENNAN CJ: What is the special leave point?
MR GRIFFIN: The special leave point is that it was not within the discretion of the trial judge to apply that kind of restraint.
BRENNAN CJ: What is the general principle?
MR GRIFFIN: In my submission, the general principle has not been determined. There has been reference to the case of Smith. That case is quoted in the appeal book, and it has been taken to refer to this type of situation, because there were statements there by Chief Justice Gibbs about precautions in a court room and how they were to be no more obvious than was necessary which, we would submit, was breached in this instance by reason of the fact that it was a transparent perspex dock. It was possible for the jury to see all of these arrangements that were made. But, your Honours - - -
KIRBY J: Would you just remind me what the nature of the incident was that was said to give rise to this arrangement?
MR GRIFFIN: It was a violent incident at the Magistrates Court where at least some of these accused were involved in assaulting other people at the - - -
KIRBY J: They were assaulting persons other than co-accused?
MR GRIFFIN: Yes, in particular, security officers.
KIRBY J: I suppose the principles are, apart from the one that Chief Justice Gibb mentioned, not more than necessary, the fact that the security arrangements should not be such as to interfere with the fair trial of a person which is inherent in the first, and such as conform to respect for their inherent dignity as human beings, but beyond saying that, what more can be said. It is then a matter of assessment of each factual situation.
MR GRIFFIN: I wanted to say that Smith's Case does not really deal with this issue of the personal restraints that are applied because, although the quotation appears to, if one looks at the report at page 533, one sees that what that case was concerned with was security arrangements made with respect to the jury. In dealing with the facts, the report says that:
The second ground was that the judge had erred in not informing the accused of a communication made to him by the jury in the course of the trial. In open court, Judge Goran had told the jury that he had been informed of a possible attempt to make contact with some of them. He dissociated the accused from the attempt, but asked the jury to inform him if any such attempt was made. The foreman subsequently sent a note to the judge to the effect that his home was receiving telephone calls which he connected with his role as a juror. The judge did not make the communication known to the accused or the Crown. The third ground was that the judge had not advised the accused of special measures he had arranged for the security of the jury arising out of the matters relied on in support of the second ground of appeal.
So it really did not involve the question of personal restrains which are permissible, or within the trial judge's discretion, in a criminal trial. It involved more the question of the arrangements that were made for the jury to go home, to court and back, by hire car and so on and whether those arrangements should be communicated to the accused. So this Court has not really, we would submit, looked at the principle to be applied in these circumstances. If the principle is to be derived from Smith's Case, it is to the effect that the precautions should be no more obvious than necessary.
In the present case, what was put on behalf of the applicants was that the appropriate restraint was an ankle restraint in an ordinary dock, and if that had been applied then, of course, that would not have been visible to the jury. It is said below that that would be an unusual thing to do. It would have involved prison officers putting these arrangements in place in the morning and in the afternoon, but we would submit that that is the type of arrangement that is put into place every day of the week in gaols and other similar institutions calling for that sort of restraint.
KIRBY J: I am sympathetic to the point that you are making, but I just do not see that there is much enlightenment that could be given by this Court on such a matter. It is inherently something that depends on the particular facts, the nature of the event that has led to the security and the particular restraints used in a particular case.
MR GRIFFIN: Yes. I do not think we can advance the matter any further, if the Court pleases.
BRENNAN CJ: Yes. We do not need to trouble you either in reply to the applications just made or in relation to the principal matter, Mr Byrne.
The applications by Messrs Alexanderson, McQueen and Farr, so far as they raise the security arrangements adopted during the trial, do not invite the determination or elucidation of any general principle of law. Accordingly, the case is not one for the grant of special leave and special leave will be refused in each of those applications.
Special leave will be granted in the case of the Queen v Barlow.
AT 3.05 PM THE MATTER WAS CONCLUDED
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