Greer v The Queen P13/1996 [1997] HCATrans 160 (30 May 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P13 of 1996

B e t w e e n -

ARTHUR BOYCOTT GREER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 MAY 1997, AT 12.45 PM

Copyright in the High Court of Australia

MR W.S. MARTIN QC: May it please your Honours, with my learned friend, MR M.T. TROWELL, I appear on behalf of the applicant. (instructed by Kuscevich and Associates)

MS S.M. DEANE QC: If the Court pleases, I appear with my learned friend, MR J. MacTAGGART. (instructed by Director of Public Prosecutions (WA))

MR MARTIN: If it please your Honours, there are two grounds upon which leave is sought. The first ground draws heavily upon the pre-trial publicity that preceded the retrial of the applicant on the second occasion before Justice Franklyn. That publicity is set out in the application book. Your Honours, the most relevant of it is at pages 25 to 29 and, in addition, at pages 183 to 185. Can I seek to summarise to your Honours, the four streams that we say emerge from the publicity, and perhaps if your Honours had open page - - -

DAWSON J: Mr Martin, you do not seek to rely on the publicity as such but only in relation to the question of whether the accused was advised properly as to his rights with respect to the empanelling of the jury.

MR MARTIN: We do rely upon the publicity, with respect, your Honour, that being a matter of notoriety and, indeed, being a matter that we say takes this case out of the ordinary case and imposed a duty upon the trial judge to inquire further - - -

DAWSON J: But the special leave questions which you seek to raise in your summary of argument are whether in the circumstances of the publicity it is incumbent upon the trial judge to fully and properly advise the accused as to his right to challenge for cause, the means of exercising that right and the principles governing the outcome of such a challenge.

MR MARTIN: Yes. The threshold question, your Honour, is right, and the reason it is posed in that way is because of what happened below. In our submission, it is necessary to put what happened below in the context of the publicity and to identify the nature of that publicity, because it is relevant to the ascertainment of what his Honour should have done. The reason I say that is because - - -

TOOHEY J: Mr Martin, I do not understand that submission. There is no application to adjourn the trial by reason of the publicity which had surrounded this matter. The trial proceeded and there was no complaint that the trial should have been adjourned. The complaint is that the appellant, or the applicant, was not properly advised as to his right to challenge for cause. Why should we get into the extent of publicity in order to determine that question?

MR MARTIN: Because it goes to the question of the duty of the judge, your Honour, and can I attempt to answer your Honour by saying that our fundamental proposition is that the judge has an overriding duty to ensure that the accused receives a fair trial and that duty is not dependent upon the actions of counsel and, of course, we would pray in aid Johns in support of that proposition. The next step in the argument is to identify what occurred before his Honour and we say there was sufficient to put his Honour on notice as to the nature of the issue which the applicant sought to raise when the applicant answered his Honour's question to the effect that he did not believe the jury would be impartial.

His Honour either then knew that the applicant was referring to the antecedent publicity and the extraordinary nature of that antecedent publicity or, alternatively, did not know but should have inquired and we would certainly submit that the inference is that his Honour was well aware of the matter to which the accused referred but pressed on regardless. Your Honours, the propositions we would seek to put if leave were granted would not be limited to the question of the exercise of the right to challenge for cause, but also would raise the question of the trial judge's independent duty to ensure the empanelment of an impartial jury, a duty which increasingly in other jurisdictions in the exceptional circumstances is being exercised by reference to some pre-empanelment form of limited questioning of the jury and so if the matter were to go - - -

TOOHEY J: But are you saying that there is an obligation on the trial judge independently of the matter being raised before him by the accused or on behalf of the accused?

MR MARTIN: Your Honour, our submission is we do not need to go that far because the matter was raised before him by the accused.

DAWSON J: What was raised before the trial judge?

MR MARTIN: The accused's assertion that the jury as a whole would not be impartial.

DAWSON J: Was that a challenge to the array?

MR MARTIN: There is a dispute as to what words were actually said, but it is clear that if it was a challenge to the array it could not succeed on that basis - - -

DAWSON J: There was no basis for that, was there?

MR MARTIN: - - - because a challenge to the array has to be limited to the mechanics pertaining to the empanelment of the jury by the sheriff's officer. The thrust though, we say, of the basis of the complaint by the accused was clear from the words he used when he said that, "I don't feel that the jury will be impartial." His Honour responded - - -

DAWSON J: He was then advised as to his rights as to challenging for cause and, after all, this occurred at the stage where a reserve juror was being empanelled, did it not?

MR MARTIN: Yes, your Honour, but I think before any juror had been sworn.

DAWSON J: Yes.

MR MARTIN: It was when the reserve juror was being brought along. Now, of course, his Honour dealt with the provision of information relating to challenge for cause in a way that we would say was not entirely satisfactory in terms of informing the accused as to what could have been done. The proposition put by his Honour was that there had to be a specific complaint about the individual juror and that, as his Honour said, the accused had to do more than just say you do not think they will be impartial. Now, with respect, your Honours, this Court in - - -

KIRBY J: Is that wrong? Given that you concede that challenge to the array is not available, is not the proper procedure, if you look at it conceptually and historically, that each time a juror comes to be sworn or comes to be chosen that at that time you take the objection just as his Honour indicated?

MR MARTIN: That is correct procedurally, your Honour, but it is incorrect, in our submission, to say that the basis for challenge has to be peculiar or particular to the individual juror. In Murphy this Court countenanced challenge for cause as one of the various means through which adverse pre-trial publicity could be diminished in its effect and that, of course, would not depend upon circumstances peculiar to any individual juror but, rather, to the - - -

DAWSON J: But it would, would it not? But it would. I mean, if the juror had not read the publicity or the prospective juror had not read the publicity then there would be no basis for the challenge.

MR MARTIN: Indeed, your Honour, and that is why we lead into the alternative topic of saying that there are circumstances in which rather than invoke the mechanism of challenge for cause it is appropriate to survey the entire pool of prospective jurors to ascertain the extent to which they had been exposed to the adverse publicity and the extent to which they - - -

DAWSON J: Who surveys them on that?

MR MARTIN: Your Honour, a number of different approaches have been adopted. In this State in another case, Connell, it was done by the trial judge himself administering general questions to each juror. In the United Kingdom in the Maxwell Cases recently a written questionnaire was administered to the entire pool of prospective jurors by his Honour and then the results of that questionnaire made available to counsel for the parties. In other jurisdictions in Canada it is done generally by the form of very general questions being asked by counsel. In Queensland, by reason of statutory amendment following the Bjelke-Petersen Case, it is done by the trial judge but with the prospect of leave being granted to counsel to cross-examine.

DAWSON J: Was any application made for such a procedure in this case?

MR MARTIN: No, it was not, your Honour.

DAWSON J: Was the accused represented by counsel?

MR MARTIN: He was, your Honour, and that is why we say that in the circumstances it was the overriding duty of the judge to ensure that a proper and impartial panel was compiled to determine the question of guilt or innocence.

KIRBY J: But looking at it from the point of view of this Court and of special leave, is not the appropriate vehicle to consider that question, which may be an important question, the occasion when somebody - the accused or counsel - actually specifically raises the point and makes a submission as to one or other or all of the procedures that you have mentioned? That was not done here. It is not a very good vehicle.

MR MARTIN: It is not the ideal vehicle, your Honour, but, in our submission, it is still a sufficient vehicle, in particular because of the nature of the publicity. It would be, in our submission, an exceptional case in terms of the antecedent publicity that would warrant this type of procedure, but this is such a case and it would, in our submission - - -

KIRBY J: Was an objection of the kind you mentioned taken in the Connell trial?

MR MARTIN: No, your Honour. I am not exactly sure of what happened below. I am not sure if application was made by counsel to examine the prospective jurors. Certainly in the Full Court the trial judge's approach of himself questioning the jurors was referred to with apparent approval. With respect, because no particular procedure was followed, there is to some extent an advantage in this case as a special leave vehicle because it provides the opportunity for the Court to identify just what the proper procedure should have been and to provide guidelines as to such important questions, for example, as: who should have conducted the questioning; what form of questioning should have been permitted, and so on.

Your Honours, these are issues that arise in a number of other jurisdictions. I have already mentioned the United Kingdom. In Maxwell's Case a questionnaire was administered. In Kray's Case earlier, some 20 years ago, the trial judge permitted counsel to question. In Canada, as I have mentioned, it is not uncommon for counsel to be permitted the general opportunity - - -

KIRBY J: I think you are going over things that you have said. No one really questions the importance of this matter. The solutions to it are either legislative, as apparently has occurred in Queensland, or the development of the common law. But it would normally be done where an application has been clearly made and a judge has made a ruling and this Court then has something concrete to deal with. But here there is a sort of vague statement, not even made at the beginning of the empanelment but at the time when a reserve juror is being brought to the book, and it is not really a very good occasion to look at this very important question, it seems to me.

MR MARTIN: Your Honour, there are authorities which - I can only answer that by saying that we would focus attention upon the duty of the judge in these circumstances. It is a matter that goes to natural justice and procedural fairness and therefore we would invoke those cases that say the conduct of counsel cannot preclude the point being raised at an appellate level. We would also pray in aid the proposition that the circumstances of this particular case gave rise to a duty of judicial intervention and - - -

DAWSON J: That cannot be right, Mr Martin; that just cannot be right. You mean the judge was to take judicial notice of the extent of the publicity and act of his own volition? There would have to be material put before the judge which would justify him taking a course such as that.

KIRBY J: Otherwise, we are encouraging you to put the material for the first time before the appellate court or before us, and that cannot be a good procedure.

MR MARTIN: We would say two things in answer to that. First of all, the accused did enunciate the general nature of his complaint by the reference to impartiality. In that circumstance, the judge, in our - - -

DAWSON J: He did it in relation to a particular juror, or prospective juror.

MR MARTIN: With respect, your Honour, the words he used were, "I don't feel that the jury will be impartial." Then what really happened was that the judge then focused his attention upon the individual juror and that is where it came unstuck, because really what the accused was saying was - - -

DAWSON J: Mr Martin, the accused was represented by, I take it, experienced counsel.

MR MARTIN: Yes, your Honour.

DAWSON J: In that situation there is not much to be gained by trying to analyse the words of a somewhat inarticulate accused, is there?

MR MARTIN: Except, your Honour, that the experience of counsel is, in our respectful submission, no answer if the Court were to conclude that the consequences of what occurred was that the accused was denied a fair trial, because it goes to questions of natural justice and procedural fairness, just as in Johns' Case, the fact that experienced counsel did not himself pursue the challenge, was not fatal to the appeal. It is the right of the accused, not his counsel, to a fair trial; it is the right of the accused to make a challenge to the empanelment of the jury, and it is the duty of the judge to ensure - - -

DAWSON J: There is no doubt that that is all true, but counsel was there and if he had felt that the accused had not made himself clear there would be procedures available for him to bring that to the court's attention.

MR MARTIN: Your Honour, it seems to be inferred that there was disagreement between counsel and the accused as to the course that ought be followed.

DAWSON J: No, no.

MR MARTIN: Well, counsel did nothing in response to the apparent manifestation of a challenge from the accused personally. Then his Honour responded in the way in which we see and the matter proceeded. Counsel apparently made no attempt to speak to his client to ascertain what his client wished to put before the court, nor did he pursue that matter with the court. In our submission, the accused did enough to manifest the nature of his complaint thus giving rise to the obligation upon his Honour to ascertain the nature of the complain. In our submission, it is to be inferred that his Honour was aware of the nature of the complaint, his Honour, of course, having previously sat on the Court of Appeal and having had put before him in respect of the application concerning a retrial of the issue - concerning a retrial having had put before him much of the publicity of which complaint was being made. Your Honours, we say there was enough - - -

KIRBY J: I agree that the default of counsel can be no ultimate answer to the complaint. The accused did signal his disquiet, but if you look at it from the special leave point of view, this Court is in a much better position to deal with this issue which is in the circumstances of modern media a rather important matter. If a concrete application has been made, there is a wealth of jurisprudence. There are cases on the point. Counsel will one day take the point. It will come up to us. There will be rulings. The whole thing will be presented in a way which is much more concrete and much more able to be dealt with fairly by the Court than it is in this case where it is all rather vague and uncertain.

MR MARTIN: Your Honour, I can only answer that with two suggestions. Firstly, one can imagine better cases. The question though is really whether this is a sufficient case for the ventilation of these issues. The other point we would make is that it will require relatively unusual circumstances, including publicity of this unusual kind, before the point will be enlivened. Your Honours, those are the only propositions I can put in response to that issue. Would it be convenient, your Honours, if I moved to the second ground?

DAWSON J: That is a matter for you, yes.

MR MARTIN: Your Honours, the second ground turns really upon the issue concerning the circumstantial nature of the evidence and the murder verdict and in particular whether the circumstantial evidence was sufficient to sustain that verdict and in particular a finding of the intent necessary to sustain that verdict. Your Honours, this case is distinguishable from any other of the cases upon which reliance was placed below in two critical respects. The first is that there is no direct evidence placing the accused in the company of the deceased during her lifetime and, secondly, the highest point of the Crown case was essentially to the effect that the deceased was buried with articles that had come or may have come from the accused's shop, including a grotesque mask, and that the deceased was buried in an area to which the accused had access.

KIRBY J: It was not only the mask, it was also the ribbon that was identified as connected with the accused.

MR MARTIN: Indeed, the ribbon and the plastic - connected with the accused in the sense, your Honour, that those articles were contained within the shop which he operated. That is why I say that the highest the Crown case got was to establish that the deceased was buried with articles that may have come from the accused's shop, including the mask.

Your Honours, that is a very different factual background to the other cases that were relied upon to sustain the verdict in the Court of Appeal below. If I could just mention briefly, Horry's Case, in New Zealand, was relied upon, very different factually. In that case, the accused and the deceased were married. The accused used a false name for the marriage, told a number of lies about his past and future to his prospective wife and her friends, cashed a large cheque in his wife's name shortly after her disappearance, and remarried a former girlfriend.

Onufrejczyk was an English case relied upon. In that case, the accused and the deceased were business partners and a profit motive on the part of the accused for killing the deceased was established. Camb is another English case often relied upon in this area. This is the case of the steward who pushed the body of the deceased through a porthole in shark-infested waters. He alleged that her death occurred after consensual intercourse but there was evidence that the steward's bell had been rung, there were scratches consistent with a struggle, urine stains, and so forth.

Weisensteiner, before this Court, was a wholly different case, in which three people went to sea and only one was later found, he having decamped with the boat owned by the other two. Buckland, which is a case now raised by the Crown, was a wholly different case. There was a de facto relationship, there was evidence of prior assaults. An argument between the accused and deceased was overheard at the time of the deceased's disappearance. There was a dragging sound, there was signs of the carpet in which the struggle had occurred being - - -

KIRBY J: What does all this matter? You are just pointing out that another case was a different case.

MR MARTIN: Indeed, your Honour. The proposition I am putting though is that those cases that are relied upon to sustain the proposition that circumstantial evidence can enable a finding of murder, and in particular a finding of a particular intent, are very different to this case in which the factual threshold to enable that finding to be made out simply was not there.

This case, in our submission, was analogous to the case of Rice in Victoria, the body in the lime barrel case, in which the trial judge refused to let any charge other than that of manslaughter go before the jury. As I say, your Honours, essentially there are two features of the evidence or lack of evidence that we rely upon. That is the lack of any evidence placing the accused in the company of the deceased - very different to all the other cases in which there was an antecedent relationship. Secondly, the fact that the Crown's case at its highest pertained to the circumstances of the burial of the body and in particular the burial of the body in conjunction with articles that may have come from the accused.

KIRBY J: But your first point cannot be a governing point, because otherwise you would exclude all cases on circumstantial evidence where a person is just waylaid and killed, often for sexual reasons.

MR MARTIN: We do not say it is a governing point, your Honour. Perhaps I should recast it. It is a point that needs to be put in the context of the second point - that is, that the evidence at its highest went only to the question of burial, not to any issue concerning the events that preceded the burial of the deceased, therefore leaving open, in our submission, a reasonable hypothesis consistent with innocence or at least consistent with the lack of an intent necessary to sustain a verdict of murder.

DAWSON J: I see your time has expired, Mr Martin. We have read the written submissions and you do make these points in those submissions.

MR MARTIN: If it please your Honours, those are our submissions.

DAWSON J: Thank you, Mr Martin. Ms Deane, we need not trouble you.

Having heard counsel and read the written submissions, the Court is of the view that there is insufficient reason to doubt the correctness of the decision of the court below to warrant the granting of special leave to appeal. Special leave is accordingly refused.

The Court will adjourn until 10.15 on Monday next.

AT 1.10 PM THE MATTER WAS CONCLUDED