Byrnes v The Queen A24/1996 [1997] HCATrans 10 (3 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A24 of 1996

B e t w e e n -

MARTIN FRANCIS BYRNES

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Adelaide No A25 of 1996

B e t w e e n -

TIMOTHY PAUL HOPWOOD

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BRENNAN CJ

DAWSON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 FEBRUARY 1997, AT 9.53 AM

Copyright in the High Court of Australia

___________________________

MR S.W. TILMOUTH, QC: May it please the Court, I appear with my learned friend, MS M.A. PERRY, for the applicant, Byrnes. (instructed by Stephen Haarsma)

MR K.V. BORICK: May it please the Court, I appear for the applicant, Dr Hopwood. (instructed by Hume Taylor & Co)

MR M.S. WEINBERG, QC: May it please the Court, I appear with my learned friend, MR D.J. CHAPMAN, for the Commonwealth Director of Public Prosecutions in each matter. (instructed by the Commonwealth Director of Public Prosecutions)

BRENNAN CJ: Yes, Mr Tilmouth.

MR TILMOUTH: Your Honours, the question at issue in this case is whether or not a Court of Criminal Appeal on an appeal from conviction is bound to, when it comes to an appeal involving questions of fact, conduct an independent review of all the facts of the case in determining whether or not there has been a miscarriage of justice. In this case, your Honours - - -

BRENNAN CJ: I take it you mean an independent review which, in the same way as it would do in a jury trial, would give full credit to the advantages that are enjoyed by the triers of fact?

MR TILMOUTH: Yes, I accept that but, with respect, not being bound by those findings and, in our submission, the error in this case was that the Full Court regarded itself as absolutely bound by those findings in relation to the key witnesses and, in that respect, we submit the court only discharged a part of the whole jurisdiction to exercise the independent review. The reason why I make that submission, your Honours, is borne out, in my submission, by two references to the judgment of the Court of Criminal Appeal at 148 and 181. At 148 from line 17 to line 30, the court simply applied a criterion of a civil review in Devries and, if the Court pleases, after an analysis of some of the evidence but accepting uncritically the findings in relation to the key witnesses, the court concluded at 181 at line 26:

Accepting, as I must, his conclusions as to relative credibility of witnesses, the cases against the appellants, at the end of the trial, were overwhelming -

If the Court pleases, the very issues in the Court of Criminal Appeal related to the very findings that the trial judge made of the other directors of the company concerned, of Magnacrete. The very central questions on the appeal was factual matters were those findings of credit, so called by the Court of Criminal Appeal. So, in essence, our argument is that the real gist of the factual matters were precluded from argument by reason of the fact that the court applied Devries and regarded itself as bound by the very findings which in fact were in contest.

BRENNAN CJ: Now, let us analyse that at two stages, Mr Tilmouth. First of all, in relation to a civil appeal to which the Devries principle applies, is it suggested the a Full Court charged with the duty of hearing an appeal as on a rehearing does not have a jurisdiction of the same kind as a Court of Criminal Appeal in relation to the review effect?

MR TILMOUTH: There are two points, if the Court pleases. Our first argument is that criminal appeals stand differently because of the jurisdictional requirement to undertake a review as to whether or not the verdict is supportable having regard to the whole of the evidence, or put it another way, whether the verdict was dangerous - - -

BRENNAN CJ: Do you say that a civil Full Court does not have the same function?

MR TILMOUTH: It does not have the complication of the proviso, if the Court pleases. In that respect, in our submission - - -

BRENNAN CJ: But we are not concerned with the proviso here.

MR TILMOUTH: No, but we are concerned with the statutory requirement to ascertain whether or not the verdict is supportable having regard to the whole of the evidence. That is, in our first submission, not a requirement in the civil court. In that respect - - -

KIRBY J: Do I understand your argument to be that because the onus of proof is different and because the peril to liberty and so on is different and because the duty of the appellate court is to be particularly vigilant and to conduct its own independent inquiry, that the issue is not what at the end of the hearing of the appeal is the more probable result but whether or not to confirm the decision would, on the independent assessment of the Court of Criminal Appeal, involve the risk of substantial miscarriage of justice or involve the peril of confirming a conviction which would be unsafe or unsatisfactory?

MR TILMOUTH: That is it, exactly, even though a civil court might say - - -

DAWSON J: Mr Tilmouth, I am not sure that I understood that. What you are complaining about is that this Court did not go into matters of credit, are you not?

MR TILMOUTH: At one level that is true, but the other point we wish to make - - -

DAWSON J: Just a minute. At every level that is true, is it not?

MR TILMOUTH: Not necessarily, if the Court pleases. Our submission is that if there is an independent - - -

DAWSON J: Mr Tilmouth, there was one issue in this case and it was an issue of fact, and it was really whether the affixing of the seal of Magnacrete to certain documents was without the authority of the company. That was the only issue, was it not?

MR TILMOUTH: Yes, that was the central issue in its pristine form.

DAWSON J: And a number of witnesses gave evidence that the seals were affixed without the authority of the company.

MR TILMOUTH: Without their knowledge and, therefore, of course, without the authority - - -

DAWSON J: Without the knowledge of the company.

BRENNAN CJ: No, without the authority. That is the statutory provision, is it not?

MR TILMOUTH: Yes, it is.

DAWSON J: If those witnesses were believed, that is the end of the case.

MR TILMOUTH: With respect, this is the whole point: they were not believed. His Honour found all of the witnesses in the case, including the two applicants, as unreliable and then proceeded throughout a long judgment to draw inferences about whether or not those directors knew the relevant facts.

BRENNAN CJ: But, Mr Tilmouth, there is not a shred of suggestion that this company ever gave any authority to these directors - knowledge, perhaps, but authority, no.

MR TILMOUTH: Not through a formal board meeting except that board meeting of the - - -

BRENNAN CJ: Not through any meeting.

MR TILMOUTH: If the Court pleases, it was the applicant's case that that board meeting in February ratified what had been understood by the previous directors.

BRENNAN CJ: The offence, if any, had been committed by then.

MR TILMOUTH: On one view, yes, but a completely different kind of offence, at least so far as its consequences are concerned, than an offence which involves deliberately keeping the other directors in the dark. These findings of course are that there was no reasonable possibility that any of the other three directors knew of the salient facts. The applicant's case was - - -

BRENNAN CJ: No, that was not the issue at all, Mr Tilmouth. That might be relevant to the question of punishment; it was not the issue. The issue was whether or not the corporate body had given authority for the acts undoubtedly done. The answer to that question on anybody's view was in the negative.

MR TILMOUTH: Except that in so far as that meeting in February was capable of conferring that authority.

BRENNAN CJ: That is the retrospective meeting?

MR TILMOUTH: Yes.

BRENNAN CJ: Then that cannot surely be right in terms of criminal liability.

MR TILMOUTH: The other point which your Honour the Chief Justice has touched upon of course is that the findings of fact could have a great deal of bearing on the likely outcome so far as sentence is concerned. If, for example, the breach was rather more technical - there was not a formal meeting - that is quite a different order of events and deliberately keeping the other directors uninformed about the relevant transactions. That clearly would be a more serious kind of offence. If the Court pleases, if the Court regarded on a narrow view of the facts a conviction as inevitable, our very strong argument would be that these current findings of fact would be used for the purposes of arguing that there should be a higher penalty than perhaps on the narrower view. But, if the Court pleases, this matter was agitated when the matter came before this Court beforehand and this Court has already determined, in our submission, that conviction is not necessarily inevitable. That depends on the findings that the Court of Criminal Appeal makes.

KIRBY J: Your client did not have a ground of appeal, did he, of unsafe or unsatisfactory?

MR TILMOUTH: With respect, not in so many words but, if the Court pleases, the case - - -

KIRBY J: It is not an uncommon ground to see in a Court of Criminal Appeal.

MR TILMOUTH: No, but what would happen, of course, if that appeal ground appeared, there would be particulars of why the verdict was said to be dangerous and unsafe, and those particulars would be the extensive grounds of appeal which, of course, were argued in the Court of Criminal Appeal below. Could I add, if the Court pleases, that although the submission was made by the respondent in the Court of Criminal Appeal that there was no formal ground, the court has not found against us on that basis. Indeed, it has partly undertaken the exercise of independent review, but falling short of going behind those credit findings.

KIRBY J: This interests me because I understand that the respondent says that there is no such independent review under the Act in South Australia. Am I understanding correctly their submission as you read it?

MR TILMOUTH: I am not sure if they simply regard it as not argued in this case but, of course, with respect, if it is that it could not be sustained because all the cases which talk about independent review from Morris v The Queen on all seize upon the same statutory provision which is in common form - - -

KIRBY J: Yes, but this would not be the case to bring that point up because (a) it was not clearly argued, and (b) in any case you concede that the Court of Criminal Appeal did perform an independent assessment, so that this is not the case.

MR TILMOUTH: In our submission it did. No, in our submission it clearly did but the error was, of course, it regarded itself as bound by those findings of credit.

The other point I would seek to make is this, if the Court pleases: although we have spoken of findings of credit, they were not findings of credit, if the Court pleases. His Honour analysed each witness and found them unreliable for various reasons, but he did not disbelieve the key witnesses and, more particularly, he did not disbelieve the applicant, Byrnes, or the applicant, Hopwood. In that circumstance, the case stands far differently than if his Honour had said, "I have seen them in the witness box and I do not believe them for stated reasons". This Court has made it very clear in Smith v NSW Bar Association that the two situations are quite different. So that in this case, if the Court pleases, when we talk about findings of credit they are not really findings of credit at all, they are simply findings that no witness in the case was sufficiently reliable and the process of analysis was therefore one of drawing inferences from objective and other materials that his Honour relied upon.

In that sense the case stands very differently because it is a Warren v Coombes situation. The court below rejected out of hand that this case was that kind of situation. In our submission, that, too, was a very wrong analysis of the facts. That appears, by the way, at pages 145 to 146 of the application book which I do not read, your Honour. At page 146 the court simply, at line 34, rejects out of hand the argument that his Honour's process of reasoning was one involving a circumstantial analysis of all the evidence and drawing inferences.

If the Court pleases, time does not permit me to go through the trial judgment but it is very clear, in our submission, that at the very start his Honour, after deciding that none of the witnesses were sufficiently reliable, says it is a circumstantial case; analyses the evidence; considers each of the other directors one by one and concludes that there is no reasonable possibility that they knew the salient facts.

That was clearly a process of inferential reasoning, and on the authority of Warren v Coombes and indeed the criminal cases, that leaves the Appeal Court in just as good a position to analyse the evidence as the trial judge. The court expressly refuse to exercise that part of the jurisdiction and, in our submission, that was a secondary error because the case was not a case which was decided according to the credit of the witnesses, it was a case decided according to an objective analysis of the evidence and the Court of Criminal Appeal should have itself, quite independently of any special rule in criminal cases, embarked upon the same analysis but, as the Court knows, it refused to embark upon that exercise.

If the Court pleases, those submissions I think crystallise the issues in this case but, in our submission, it is a very important question for the exercise of the criminal jurisdictions of Courts of Criminal Appeal in this country in cases of trial by judge alone which, of course, are an increasing phenomena in Australia. If the Court pleases.

BRENNAN CJ: Thank you, Mr Tilmouth. Mr Borick.

MR BORICK: In my respectful submission, the confusion as to the relevant function of an appellate court on an appeal from a conviction by a judge is manifest and there are five possibilities. Is the Court to decide it on what I will call a Devries standard, which this Court did and which has now been, in effect, followed by the Federal Court in the case of Von Berg and Curtis. Is it the Warren v Coombes standard which Mr Tilmouth has referred to, particularly in his outline. Third, is it the test perhaps best expressed in the Canadian case of Burns where the Court of Appeal has to review evidence to re-examine, re-weigh it for the purpose of determining if it is reasonable capable of supporting the trial judge's conclusions, and that is close to section 353 of our Act.

Fourth, within that, how does the unsafe and unsatisfactory test apply and perhaps which of those two because, in my submission, if a court has decided on the Devries standard, as it did at page 148 in this case, it is almost impossible to go back then to have a look at it to see whether it is unsafe and unsatisfactory against a background of having found all the findings of credibility and all the inferences that have come from those findings are already in place and established. The fifth possibility is whether it is some different test altogether, given the fact that there is no satisfactory explanation of the status of a trial judge's reasons. We have them, but it has been pointed out in a lot of cases, no one quite knows what that status is.

BRENNAN CJ: Is it anything different from the status of the findings of a magistrate in summary jurisdiction and, if so, why?

MR BORICK: Yes, because there is an appellate structure in place on findings from a magistrate's findings and a court has to look them behind them, but a court can interfere, if it wishes to. They are not, as I understand it - they do not simply apply the Devries standard. In dealing with a conviction from a summary matter, a minor matter, it is a fundamentally different thing to dealing with a conviction for a serious crime where the loss of reputation and a loss of freedom is so much greater. Now that we have got trial by judge alone in this country - and no one ever gave any thought when they set it up as to what was going to be the status of the reasons given by a trial judge, and whether he or she should give them - that we have now got this confusion. It is clear, in my submission to the Court, that the five propositions I have put to you, the five possibilities that I have put to you, exist. We have now got - - -

BRENNAN CJ: It seems strange to think that we have got, for example, your first two possibilities. Is it a Devries test or is a Warren v Coombes test? So far as I have understood, they both apply. They both apply concurrently to every civil case. Where is the distinction between them?

MR BORICK: Yes, in civil cases, yes.

BRENNAN CJ: Where is the distinction between them?

MR BORICK: The reason why I say it was a distinction, because of the way in which the court in this case took Devries and said, "Now, that is what we are going to apply," and then dealt with - but it does not matter, with respect, your Honour. There is no real distinction. The point is they apply in civil cases and there is no clarity at all as to what is going to be the position in a criminal case. So narrow my possibilities down to four. There is still four and the confusion still exists.

BRENNAN CJ: I find this argument very difficult to comprehend, and for this reason: a Full Court sitting in civil jurisdiction has a jurisdiction to rehear but not rehear de novo; therefore, it must consider the evidence that comes from the court below. If it does that, then if the findings of the court below depend solely upon what might be regarded as irrefragable facts you have your Warren v Coombes situation. If it turns on questions of advantage that is enjoyed by the trial judge, you have the Devries situation. What is the problem that you see arising when a Court of Criminal Appeal is concerned to review, again not de novo but on the evidence, the case that has been presented and found in the court below?

MR BORICK: There are two fundamental differences. One is the Court of Criminal Appeal has to deal with the overall unsafe, unsatisfactory test, however it emerges, or whether the findings of the trial judge are in fact reasonable against - and this is the second part of it - against a background of the importance of the verdict in a criminal trial which takes away reputation and freedom and, therefore - - -

BRENNAN CJ: They have to ask the question, "Ought the trial judge to have had a reasonable doubt?" That is the question, is it not?

MR BORICK: That is one of the questions. Whether that is precisely the question that is asked, your Honour, "unsafe and unsatisfactory" is, in my submission - - -

DAWSON J: But it is. It is the question.

MR BORICK: - - -not altogether certain.

DAWSON J: It is.

BRENNAN CJ: It is.

DAWSON J: M v The Queen states that.

MR BORICK: But it is still not a test that a civil court applies, and that makes the difference.

DAWSON J: We are not in a civil court.

KIRBY J: I think that is your point - that the court is not simply re-trying the issue with the disadvantages, it is performing a different and vigilant function. But if, as has been put to you by Justice Dawson, in the facts of this case the conviction was inevitable, then this is not a case to bring up the point - which may be difficult, and may require consideration at some future time - this is a case where that point does not really arise.

MR BORICK: The conviction, with respect, is not inevitable, because in the long and perhaps sorry history of this case since 1993, when the appeal was first launched, we have been saddled with all the courts having to accept Judge Lunn's findings. Now, one of the major points we were making for Dr Hopwood was that his case was never considered separately, and that his role was fundamentally different to that of Mr Byrnes.

BRENNAN CJ: What about the elements - - -

MR BORICK: Now, that complaint that we made has never ever been - sorry, your Honour?

BRENNAN CJ: Let us take the elements of the offence. Did he place the seal and take the actions referred to in paragraphs (a), (b) and (c) of count 1? Did he do those things? The answer must be yes.

MR BORICK: Putting it that way, I have got to answer yes.

BRENNAN CJ: Now, at that time had the board of Magnacrete given him authority to do those things?

MR BORICK: According to Dr Hopwood at the trial, yes, he understood - it was his case that what he did was perfectly valid, perfectly proper.

BRENNAN CJ: That is not the question.

MR BORICK: And his position on that has never been considered.

BRENNAN CJ: That is not the question. The question was whether there had been any authority given by the company, and the answer has to be no.

MR BORICK: On Judge Lunn's findings. But it would impossible on a special leave application to challenge that.

DAWSON J: Not on Judge Lunn's findings alone, Mr Borick, but on the facts, on any view of the facts.

MR BORICK: No, the facts found by Judge Lunn, which this Court has read. In our submission, the facts, if properly examined and properly reviewed by an appellate court, may well turn out to be different.

DAWSON J: Can you point to anything that constituted authority?

MR BORICK: As far as Dr Hopwood was concerned, the other directors were aware of what had happened.

DAWSON J: That is not an answer to the question.

MR BORICK: That was critical to our case.

DAWSON J: But it is not an answer to the question.

MR BORICK: It cannot be ignored, your Honours, that Judge Lunn made findings of credibility and, upon those findings of credibility, he then discerned and inferred the found facts, and we have never had the chance to challenge those. But I come back to my central point that - - -

KIRBY J: You cannot answer Justice Dawson's question, because you have merely - - -

MR BORICK: I cannot answer it, because I would have to be here a long time to reargue the case before a court of appeal, and that has never happened.

KIRBY J: Well, just content yourself with one little fact - one little fact in the evidence. Just a small skerrick of fact that would warrant a conclusion, or an argument of authority.

MR BORICK: Take a meeting of 3 February when Byrnes met with the other directors and there were two minutes drawn up, one by Mr Byrnes and one by Mr Llewelyn, secretary to one of the other directors.

BRENNAN CJ: After all this had happened?

MR BORICK: But one had to judge what happened in late December not just in a vacuum; it had to be judged against what happened in early December and what happened in January because that is the way the trial judge approached it. He looked at it overall and he placed a great deal of regard on what happened at the 3 February meeting which my client was never at, and what happened there should never have been used against my client. So, in answer to Justice Kirby, there is one feature of this evidence alone which - and it goes to the issue of whether Dr Hopwood's case was treated separately - is an example of the sort of thing we would argue given a chance. But we have never been given a chance because the court adopted the civil standard. In addition of course, there is this confusion that is manifest as to what is the proper function of the Court of Criminal Appeal on trial by judge alone when we do not understand the status of the trial judge's reasonings. Those are my submissions.

BRENNAN CJ: Mr Borick, before you sit down and so that there will not be any misunderstanding, the question that has been asked of you is: is there a skerrick of evidence anywhere which might support a finding or a reasonable doubt as to the fact as to whether the company had given authority to your client to do the acts which he did at the time that he did them? I am not talking about knowledge; I am talking about authority.

MR BORICK: I find it very difficult to distinguish between knowledge and authority.

BRENNAN CJ: I could understand that, but that difficulty is at the heart of your problem.

MR BORICK: We are talking about a criminal conviction now, and if Dr Hopwood understood that he had had that authority, that makes a fundamental difference to whatever the alleged criminal conduct was.

BRENNAN CJ: If his belief was reasonable?

MR BORICK: If his belief was reasonable, yes. In my submission, if it is properly assessed and looked at against the evidence as a whole, it was reasonable. The verdict of the trial judge may well have been different if he had approached it from the point of view of believing Dr Hopwood instead of believing Mr Hill, Mr Young and, to a certain extent, Mr Llewelyn. That possibility was taken away from us of arguing that because the Court of Criminal Appeal relied totally on the findings of credibility of Judge Lunn. If the findings of credibility were of no significance for the reasons your Honour has put forward, why were they made at all? They were made because his Honour Judge Lunn had to make findings of credibility and from there infer what the facts were about Hopwood's understanding and knowledge and the reasonableness of that.

BRENNAN CJ: Thank you, Mr Borick. We need not trouble you, Mr Weinberg.

On the undoubted facts in this case, the conviction of the applicants was inevitable. It is not a case in which to consider the functions of a Court of Criminal Appeal in an appeal against conviction by a trial judge sitting without a jury. Accordingly, special leave will be refused in both applications.

AT 10.22 AM THE MATTER WAS CONCLUDED