The Queen v Serratore S264/1999 [2000] HCATrans 194 (14 April 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S264 of 1999

B e t w e e n -

THE QUEEN

Applicant

and

JOHN SERRATORE

Respondent

Application for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 APRIL 2000, AT 2.57 PM

Copyright in the High Court of Australia

MR A.M. BLACKMORE: I appear for the applicant with my learned friend, MR R.D. ELLIS. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

MR I. McC. BARKER, QC: If your Honours please, I appear with my learned friends, MR R.S. TONER, SC and MS. S.A. WALSH, for the respondent. (instructed by Macedone Christie Willis)

GUMMOW J: Yes, Mr Blackmore.

MR BLACKMORE: Your Honours, this is, perhaps, an unusual occasion where the Crown seeks leave to appeal. I propose to initially set out shortly the reasons why the Crown seeks leave in this case; secondly, to set out the applicant's principal contentions for seeking such leave and thirdly, to address why we submit that this is an exceptional case where the Court will grant leave.

The reason why the applicant seeks leave in this particular case is because we submit that the trial judge and the Court of Criminal Appeal have seriously misapplied the rules in relation to circumstantial evidence. This misapplication has had a number of effects and it is likely to have a number of effects in this case.

It will seriously affect the manner in which any retrial can be conducted and is likely to artificially constrain the Crown in relation to the evidence that could be offered to the jury. In particular, it is also likely that this will be used as authority in relation to propositions stated in it and it will be used by other courts in New South Wales and, of course, potentially, elsewhere.

I am moving on to the principal reasons why we submit that special leave ought to be granted. Whilst we have addressed those in written submissions fairly extensively the principal error which the Crown contends permeated both the trial and the decision of the Court of Criminal Appeal is a fundamental one for which, with respect, it can be easily demonstrated from the judgment of the Court of Criminal Appeal.

Both the trial judge and the Court of Criminal Appeal confused important individual pieces of evidence with evidence which was indispensable to the Crown case and that is the clear and distinct error which the Crown submits was made in this case. In doing so they have created a situation where an appropriate verdict of a jury was overturned in relation to a very important prosecution. In that regard it is necessary to, perhaps, just take your Honours briefly to the decision of this Court in Shepherd which is reported at 1990 - - -

CALLINAN J: Could I just ask you a question first? You said that as a result of the decision of the Court of Criminal Appeal the Crown would be restricted in the way in which - - -

MR BLACKMORE: Potentially restricted, I have to qualify.

CALLINAN J: What do you say then as to what they said in the Court of Criminal Appeal at page 156 where their Honours said that they considered that the "direction was not appropriate, and unduly restricted the Crown case" which does not seem to me to be a signal to any court or any judge conducting a trial to direct or sum up in the way in which the trial judge did here.

MR BLACKMORE: I appreciate that, your Honour. Your Honour, what we say about it - I am going to come to that very passage which is very important.

CALLINAN J: Before you go to Shepherd, however, can you tell me where in the reasons for judgment of the Court of Criminal Appeal there is a statement of a proposition that would, if applied, restrict the Crown in presenting circumstantial cases.

MR BLACKMORE: With respect, there is not and that is the very error that is demonstrated in the judgment. Can I illustrate it this way, your Honour, and maybe if I just go straight to it. I understand what your Honour is saying, that the courts themselves have said there is no such restriction but it is logically inconsistent. Either these facts are indispensable or they are not. If they are dispensable they are not indispensable and therefore they are not facts which should have been left to the jury on the basis of having to be proved beyond reasonable doubt. Now, perhaps, if I can conveniently just take your Honours to then the judgment.

CALLINAN J: Could I just ask you this? I am sorry to keep on interrupting you but let me assume for present purposes that you are right about that.

MR BLACKMORE: Yes.

CALLINAN J: Would it not still have been an error for the trial judge to have directed the jury in the way in which the primary judge did in respect of the matter which the Court of Criminal Appeal seemed to - should not have been the subject of such a direction. There were four matters, I think, and one of them the Court of Criminal Appeal said should not have been the subject, on any view, of a direction of the kind that was given. Is that right?

MR BLACKMORE: Yes, it is an error.

CALLINAN J: Say we were to grant special leave. Would the consequence still not be, in the circumstances, a retrial?

MR BLACKMORE: No, your Honour. With respect, no.

GUMMOW J: Why?

MR BLACKMORE: We would submit that the consequence would be the restoration of the conviction because that particular direction was entirely favourable to the accused and, therefore, there would be no substantial miscarriage of justice involved.

CALLINAN J: That is a point you will have to persuade me on and I suggest you go to it straight away.

MR BLACKMORE: Yes, well the court itself makes that point, with respect.

CALLINAN J: Which direction do you say was unduly favourable to the Crown in respect of the matter that the Court of Criminal Appeal said was certainly not an indispensable matter?

MR BLACKMORE: To the accused, your Honour.

CALLINAN J: The accused.

MR BLACKMORE: Yes. The directions in relation to having to prove those, said to be, essential elements, we will hope to demonstrate to the Court that those, in fact, should not have been given but because they were things that the Crown was forced to prove to the jury beyond reasonable doubt and did so, and because they were otiose and unnecessary - - -

GUMMOW J: The four essential circumstances are set out at 93.

MR BLACKMORE: Yes, because the judge did, in fact, direct them in that way and we will demonstrate that they were unnecessary to be given that way and therefore no miscarriage of justice has occurred in relation to them. The fact that the jury have, in fact, returned a verdict of guilty is consistent with the fact that it was unnecessary to prove those particular matters beyond reasonable doubt and, in fact, if you go to paragraph 133 in the judgment of Justice Dunford at page 158 of the application book, he makes the very same point but only in relation to one of the particular elements that he says it was necessary to prove.

CALLINAN J: Just remind me: which was the matter that the Court of Criminal Appeal said would not, of itself, tend to establish guilt? There was one matter, was there not?

MR BLACKMORE: There were three matters they said were necessary.

CALLINAN J: Exactly.

MR BLACKMORE: In relation to a direct killing, that is a killing undertaken by the accused, and there was only one matter that was necessary to be proved in relation to an indirect killing. They are set out in paragraph 128 of Justice Dunford's judgment at page 156. About the middle of that paragraph, it says:

Bearing in mind that the appellant was under police surveillance from late on the 29th, the proposition that the appellant himself killed the deceased required proof -

and then he sets out - - -

GUMMOW J: It is 2, 3 and 4 but not 1.

MR BLACKMORE: Yes. There was an alleged arrangement to meet the deceased and that was said not to be an issue that was necessary of proof. Perhaps if I can just proceed to, at least attempt to demonstrate for your Honours that there is, in fact, a substantial error in the way in which the court has approached this matter and it is clearly demonstrated in the judgment of Justice James at page 165. I realise that he is not the principal judgment in this matter but his judgment crystallises the error, in our submission, now before the Court. It is about line 10 on that page. He says:

I also consider the trial could proceed on the basis he was a principal, notwithstanding the view Dunford, J. takes, and I share, that it was not open to the jury to find certain of the four essential circumstances.

CALLINAN J: We do not know upon which basis the jury convicted, whether he actually killed the victim or whether he procured somebody else to do it. Is that so?

MR BLACKMORE: That is right. We do not know, or one or the other. They were not confined to that consideration.

CALLINAN J: If you do not know which it was, then how do you answer what the Court of Criminal Appeal said at page 157, paragraph 130? One of the judges said:

they could not, acting reasonably, have been satisfied to that standard of two of those matters - - -

MR BLACKMORE: But that is the very point. They, themselves, acknowledge that these things are not essential in the sense of being Shepherd indispensable linked matters because they say, as Justice James says, that it is unnecessary to prove them in a second trial. There is no other means of looking at this matter. It is illogical inconsistency in the way in which they approached the matter. They were either essential, they are indispensable or they are not. If they are indispensable they are like elements in the offence.

How is it said that the Crown can now run another case based on principle if we cannot prove elements of the offence? How is it said? It cannot be said, with respect, in this case and that is the error here, that they have artificially confined the Crown - not intentionally, I accept, but artificially confined the Crown to a case that involves the accused not being the principal killer. It is an error made directly and expressly against the terms of this Court's decision in Shepherd.

It is, with respect, a very important matter. This is a very important prosecution but, moreover, this judgment itself will be used by New South Wales courts in future as an example of cases where it is said that these are indispensable links and yet they acknowledge themselves that they are not indispensable. They say they are dispensable so it just cannot be that this can be allowed to proceed on this basis, with respect.

It is really, in our submission, as simple as that. The issue is simply one that they have misapplied themselves to the very test that they had to apply and, having done so, they have now confined the Crown to a different sort of case. They do not acknowledge it and I accept they do not acknowledge it but if you think about the matter logically they must have done so. They are either indispensable and therefore, effectively, factual elements in the case or they are not.

If granted leave we would demonstrate that, in our respectful submission, that they were not indispensable links. In fact, they really acknowledge themselves that they are not and therefore they were not required to be proved beyond reasonable doubt and therefore any direction to the jury that they were simply was one favourable to the accused. The jury got it right in this case and what has happened since then is a miscarriage of justice.

Now the reason that it is an exceptional case is because this is a chance for this Court to examine again and look at Shepherd and reinforce the rules in relation to Shepherd. Moreover, the other issue in the case is the fact that they never ever approached the proviso. Had they considered whether or not, in this case, there was a substantial miscarriage of justice they would have been required to think for themselves about why these matters were essential and yet they never even addressed the issue.

CALLINAN J: They made a very close analysis of the evidence, though, on any view.

MR BLACKMORE: I acknowledge that. I acknowledge that, your Honour, but it is an exercise that the statute requires that they proceed on to consider substantial miscarriage of justice. They never addressed for themselves the very question that had to be addressed. Why were they essential? That is an extraordinary thing, with respect.

In our submission, this is a case which does require leave. It is a case where it is necessary to restore, in the interests of justice, a proper conviction. It is a case where this Court would have an opportunity to look at the questions about the proviso which has never been addressed as far as we are aware by this Court and that is an issue, of course, which is one which is relevant Australia wide.

In our submission, this case demonstrates the fact that Shepherd can be misapplied and can have very serious consequences in a trial, in this trial and it may have serious consequences in other trials. Those are the submissions for the applicant.

GUMMOW J: Thank you, Mr Blackmore. Yes, Mr Barker.

MR BARKER: Your Honours, the reason that the court did not consider the proviso is that the Crown did not argue that there was no substantial miscarriage of justice and did not ask the court to look at the proviso. Whether facts are such that need to be proved beyond a reasonable doubt depends upon an examination of each fact. There has been no departure from Shepherd. Shepherd does not need re-looking at. Shepherd, after all, evolved from a misunderstanding of the law and the profession which derived from Chamberlain.

Now, all the court has said here, in effect, is that of the four matters the judge said should be proved beyond reasonable doubt, one of them should not have been given and of the other three, three would be necessary to prove a case against the respondent that he was a principal, that is he left work early. The woman was killed on that day, 29 March, and she was in the car in the process. For the alternative case, they say the jury should be directed only that the Crown must prove beyond reasonable doubt she was in the car.

Now, the miscarriage of justice, of course, is that the jury convicted in the face of four directions, at least two of which were not capable of proof beyond reasonable doubt. We do not know on what ground they convicted. They may have convicted him as a principle in defiance of all four directions. After all, all the Court of Criminal Appeal has done is to order a retrial and, in my respectful submission, nothing has been put to your Honours which makes this either a case that needs correction in the law or a case involving any special leave point. If your Honours look at the special leave questions identified on page 209 the first one seems to be - it merely begs the question and appears to be saying no more than the judge is not entitled to give a misdirection which does not require this Court's consideration.

CALLINAN J: There is nothing in the reasons of the Court of Criminal Appeal to suggest that Shepherd is not the law and that Shepherd should not be applied and it will, no doubt, be applied on the facts as they are presented in the retrial.

MR BARKER: Yes, your Honour. They may not be the same.

CALLINAN J: Exactly.

MR BARKER: And as to the second special leave question, it is entirely irrelevant in this case because the Crown did not argue the matter on the appeal and it is an extraordinary suggestion, with respect to my friend, to say that the Court of Criminal Appeal has an independent duty to look at the proviso in every case to see for itself whether a conviction should be quashed or a retrial ordered or an appeal dismissed when it is not invited to do so by the Crown. If the Court pleases.

GUMMOW J: Thank you, Mr Barker. Mr Blackmore, anything in reply?

MR BLACKMORE: Only very briefly, your Honour. This is not a question about fact. This is a question about misapplication of the case and yes, it is true that the court does not mouth any words that says it is not following Shepherd but one has to look at what they did and on page 165 it is clear that they did not apply Shepherd or that they simply misunderstood it completely and I can only really repeat what I have said before. Indispensable means that, indispensable. It does not mean that you can dispense with them but that is precisely what they have done. Both Justice Dunford and Justice James in their judgments have dispensed with these facts and therefore they were not ever facts which were indispensable and they should never have been directed to the jury that way.

GUMMOW J: We will take a short adjournment.

AT 3.16 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.20 AM:

GUMMOW J: The respondent in this case, which was almost entirely circumstantial, was convicted of murder. The trial judge, in his summing up, directed that before the jury could convict they needed to be satisfied of four factual matters. In the New South Wales Court of Criminal Appeal the majority, in upholding an appeal by the respondent, said that the trial judge had erred in giving this direction as it "unduly restricted the Crown case." But, in the opinion of the majority, there was a further error in the direction which redounded to the disadvantage of the respondent. That was wrongly to regard the evidence of two of the four factual matters as being capable of constituting proof beyond reasonable doubt. In those circumstances, the Court of Criminal Appeal quashed the conviction and ordered a retrial.

In this Court, the applicant submits that the Court of Criminal Appeal fell into error in equating important Crown evidence with "intermediate facts which constitute evidentiary indispensable links". In other words, the prosecution invites the Court to grant special leave in order that the probative value and weight of factual matters, the subject of detailed analysis by the Court of Criminal Appeal, be re-examined in this Court. Other grounds relied upon by the applicant for special leave would involve a similar re-examination.

Therefore, the case does not, as we see it, raise any important questions of principle. In particular, there is nothing to suggest that on a retrial there would or should be any departure from the principles stated in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. Having regard to that, and the caution which this Court exercises in applications and appeals by the Crown in criminal cases, the application is refused.

AT 3.22 PM THE MATTER WAS CONCLUDED