Serratore v The Queen S87/2001 [2002] HCATrans 125 (15 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney- Nos S87 of 2001

B e t w e e n -

JOHN SERRATORE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 2002, AT 2.40 PM

Copyright in the High Court of Australia

MR R.S. TONER, QC: If the Court pleases, I appear with my learned friend, MS S.A. WALSH, for the applicant. (instructed by Macedone Christie Willis Solari Partners)

MR R.D. ELLIS: If the Court pleases, I appear for the respondent with my learned friend, MR P.E. BARRETT. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Toner.

MR TONER: Your Honours, it is our submission that this case raises fundamental questions about Crown pleading and proof. It is important to note that this was not a case where the Crown presented its case by saying if it is not scenario A, it must be scenario B - in other words, the familiar story of two people going into a room, one with a gun; gun goes off; each of them go in there with a deadly purpose to kill the third person in the room; the evidence does not reveal which of them fired the gun but it was one of them and each of them went into it with the same intention. So that the jury do not have to necessarily determine who fired the gun. It could have been either of them but each of them was equally culpable in relation to the killing.

This was a case where the Crown effectively presented three separate scenarios as to the how this killing happened. The first was that Mr Serratore was the killer himself, unaided. The second was that Mr Serratore was present with an unknown person and, either together or his assisting that second person, killed Ms Tizzone. The third scenario was that he was not present at all but that he had hired or retained somebody else to do the killing and that person did the killing.

GLEESON CJ: What do you say about the comment of Justice Greg James recorded on page 227 of the application book, line 30? It struck me as a fairly devastating comment.

MR TONER: Quite, your Honour, but it confronts the broad proposition of proof. Now, if the Crown presents its case in three ways - and assume for the moment that you had a division within the jury to say three of them were satisfied beyond a reasonable doubt as to the first scenario, three of the second and the balance of the third - the problem that arises is that the proof in relation to each contradicts the other. So, say, for instance, there were six jurors or three jurors or however many jurors - it does not matter - who were persuaded beyond a reasonable doubt as to the third scenario because they accepted the alibi evidence in this case, by that determination there would be a frank contradiction of the findings of other members of the jury who might have been satisfied beyond a reasonable doubt as to scenario 1.

It becomes an oxymoronic proposition if you say the jury has to be satisfied beyond a reasonable doubt but of what? Of the factual basis which found the elements of the offence. Where you have two separate scenarios which involve propositions which necessarily contradict each other, in other words, here you might have some who accept the alibi evidence that it could not have been John Serratore who personally did the killing and reject the other two scenarios, and you have others who accept the alibi evidence which, of course, would defeat the scenario which was proposition A and find that he hired somebody else to do the killing independently of him, that necessarily creates an absurd proposition, in our submission, where you have two contradictory positions said to enable a jury to reach unanimity as to culpability.

Now, the difficulty with that is that what underpins our system is the question of proof beyond a reasonable doubt of somebody's culpability for a criminal offence. How could it be that you have proof beyond a reasonable doubt when the foundation of two different scenarios within the Crown's case are necessarily contradictory?

GLEESON CJ: Let me give you an example. Let us suppose that an accused person has made an admission of guilt but the admission is not made in terms that are sufficiently specific to enable you to conclude what particular form of guilty conduct the accused engaged in. In other words, suppose that the accused in a murder case says, "I fixed him up well and truly", and that could mean "I took a gun and shot him" or it could mean "I hired a contract killer who shot him", but the accused has made an unequivocal but also unspecific admission of guilt. What happens then?

MR TONER: Well, because what the jury would be then considering is that as an admission rather than how it was done. He is confessing - - -

GLEESON CJ: But if the jury believed the evidence of that admission - suppose it was on tape. Suppose, as once happened in a case I was involved in, the police had planted a video in a room and had a video recording of some people discussing a contract killing. Suppose there was cast iron evidence of the admission but the admission was non-specific.

MR TONER: What the jury would be considering is the admission of guilt as to the involvement in the killing, not the mode of the killing.

GLEESON CJ: But the jury would be told, would they not, that it would not matter in that case whether they were able to infer exactly how he killed the victim?

MR TONER: I would accept that but this is a different proposition. This is turning that proposition, with respect, on its head. In other words, the Crown is saying, "Here are three possibilities as to how he could be liable. We have, of course, no admissions and we invite you to select whichever one you prefer".

CALLINAN J: Mr Toner, it must frequently happen that there are unidentified and therefore uncharged accomplices to many crimes and the jury would often be left in doubt or unable to decide whether the accused had acted alone or not or, indeed, what the precise roles were of the various persons who were involved. There is nothing unusual about that.

MR TONER: But here the competing versions involve such stark differences as to the involvement of the accused. On the one hand, you have the accused as the killer and at the other end of the spectrum you do not have him even present at the killing. He is supposed to have hired or acquired somebody else to do it. That is the range of activities. Mostly, in cases where there are grey areas or unexplained areas, the role of the accused person is a specific involvement in the activity.

CALLINAN J: Was there any evidence to support the third scenario, the one of procuring of the killing by a paid killer? What was the basis for that scenario?

MR TONER: There was none, save for the second part of our submission in relation to the direction that the trial judge gave the jury as to what they could do with Mr Radwan's evidence, namely: "You'll recall that Mr Radwan was approached some months before the killing and was asked by the applicant to kill Ms Tizzone, which he refused to do". There was a direction given by his Honour to the jury that they could use that evidence as evidence of continuing intention to kill Ms Tizzone that way. But that is as good as it got. There was absolutely no evidence at all to suggest that he had solicited anybody to do this killing in March 1995. There was none. That was the basis of an application made during the course of the trial that that not be allowed to go forward to the jury, but that application was rejected.

CALLINAN J: But that was the basis, if any, for the procurement - - -

MR TONER: That was as good as it got.

GLEESON CJ: Well, it is not bad; a previous attempt to hire a hit man.

MR TONER: Well, except for this: we say in relation to that proposition that you have to look at it in the totality of all the evidence in this case. That same hit man was also the man who was the intermediary between the two of them to get back together again. Mr Radwan's evidence was controversial in the trial but you have to look at the totality of the case to look at the strength of that proposition. The jury did not necessarily need that evidence to convict Mr Serratore but, nonetheless, we say that in the context of this case it was dangerous to leave it to the jury the way they did. However, that is another part of this argument.

Can I say in relation to the first point, namely, the way the case was pleaded and the structure of the Crown case, has led to much controversy here as to how these sorts of cases are dealt with. Now, I have referred this Court to Beach where similar propositions arose and comments were made by the Court of Criminal Appeal down there as to what they thought of pleadings such as this and factual matrix such as this. Similar, in Leivers up in Queensland, the Court of Appeal up there had similar concerns about this. Now, both of those courts are out of step with the attitude taken by the Court of Criminal Appeal in New South Wales.

Leivers, which I think is the first case in the bundle, the page I would take your Honours to is 662 at about line 27, where the President and Justice Moynihan said this:

When more than one basis of criminal liability is relied on against an accused, it is, in our opinion, necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of one basis of liability are established and for other members of the jury - - -

GLEESON CJ: It depends on the level of particularity or generality at which you are using the expression "basis".

MR TONER: Yes, your Honour. I am talking about the factual basis of the element of the offence.

GLEESON CJ: Did we not deal with all this in the last couple of months in the case of Chung?

MR TONER: Chung was somewhat different, your Honour. Chung was charged with knowingly concerned with the importation of heroin and what was concerned in Chung was whether there should have been two counts in an indictment to cover two discrete periods so that one could isolate the degree of culpability of Chung.

GLEESON CJ: No, the basis of that argument was that there were two quite different versions of the facts; different it was said in terms of the time at which the accused person joined a particular conspiracy.

MR TONER: Indeed.

GLEESON CJ: That was said to have important consequences in terms of the level of culpability for purposes of sentencing.

MR TONER: Yes.

CALLINAN J: And made no difference to the charge because he was guilty no matter which of the versions was accepted. He was guilty as charged.

MR TONER: That is quite right.

CALLINAN J: It only went to sentence.

MR TONER: I agree with that but the difference between Chung and this is that the charge itself incorporated both the periods which were suggested should make up the two counts in the indictment, and the question that only really arose is to determine the level of Chung's culpability and the seriousness of his involvement in the case. It was not a question where you could say Chung's criminality was not incorporated within the time frame that was within the indictment. The question became whether the trial judge was entitled to identify what his specific involvement was in the criminal conduct. He was guilty of knowingly concerned with the importation of heroin on the indictment as presented and it mattered not in terms of whether he was going to be found guilty or not, as to whether you had two counts in the indictment or one.

GLEESON CJ: Is the consequence of your argument that the Crown should have charged three counts and, unless they could get the jury to be unanimous in relation to one of those three counts, your client had to be acquitted?

MR TONER: Because that is the very nature of doubt, your Honour.

GLEESON CJ: Doubt about what?

MR TONER: Well, doubt about whether this man did it, because if you say - if some of them say he was a killer - - -

GLEESON CJ: When you say "did it", what do you mean by "it"?

MR TONER: The killing.

GLEESON CJ: But he could have been liable for murder even if he did not do the killing.

MR TONER: Of course he could be, but my submission to this Court is this, that if some of the jury say he was the killer and others of the jury say, "We don't believe he was the killer per se but he might - - -

GLEESON CJ: No, "We're not satisfied beyond reasonable doubt that he is the killer".

MR TONER: I suppose that is the nature of all criminal trials. "We're satisfied because of the alibi" or for whatever factor. You have a proposition then where a jury is not satisfied beyond a reasonable doubt about the basal elements of the finding of fact in a criminal trial so as to base a foundation for culpability.

GLEESON CJ: So, if the jury all say, "We are satisfied beyond reasonable doubt that he either did it himself or hired a hit man to do it but we can't say which, we must acquit him."

MR TONER: No, no. In fact, this case was left to the jury in four ways: firstly, that he was the killer; secondly, that he was present with somebody when the killing was done; thirdly, he hired somebody else to do it; or, fourthly, that, "If you're not satisfied of (a), (b), or (c), but you say he is involved in the killing, then you can convict him." That was the fourth way it was - that was the harmonic on top of the three specific scenarios put by the Crown. We say in relation to this that if you analyse the way the case was run from the old common law position, what the Crown was really saying was that on the first scenario he was a principal in the first degree, on the second scenario he was a principal in the second degree, and on the third scenario he was a principal in the third degree.

Now, when looked at in that way and given that you had two entirely separate sets of facts - there were common threads, of course, but looked at in that fashion, you have a situation where the jury cannot be unanimously satisfied beyond a reasonable doubt of facts which can sensibly found a finding of guilt because they have a doubt. If they say, "Well, we accept scenario C" and others say, "Well, we accept scenario A", that is the very nature of doubt. In our submission, that is the way this case ought properly have been pleaded to make it clear as to what they were considering bearing in mind always that when it was originally commenced, the Crown case was that John Serratore was the killer and it was only after the committal proceeding that scenarios 2 and 3 sprang because of the alibi witnesses being produced.

That is how it happened in this case and, in any event, we say that it defies both logic and what we say the proper tests are and the qualification such as in Thatcher's Case where these qualifications are drawn, in both Victoria and in Queensland where, in our submission, appropriate regard is had to these very problems, namely the factual foundation of a finding of a particular element and murder proved.

Can I move on just briefly to the second part of our application and that is the exercise of the discretion under 136 in particular, as to how this evidence of Radwan went to the jury. Your Honours, it is important to bear in mind how section 136 is framed. It says where "there is a danger" and "might" are the words used in section 136 of the Evidence Act, that the jury "might be misled or confused or it would be unfair to the accused."

There was inherent danger in this case that Radwan's evidence would be used as tendency evidence where the Crown had specifically eschewed leading this evidence as tendency evidence. If they were going to do it that way, they could have done it by the serving of notices and specifically saying that they would lead it as tendency evidence. There was always that inherent risk that the jury would treat it as tendency evidence no matter what his Honour's directions were to them as to the caution they were to apply to that evidence.

It is our submission that no matter what caution was given to this jury, that was the risk involved and he should have exercised his discretion in favour of the accused to restrict the evidence to relationship evidence. Now, we say the House tests are satisfied here; that this Court and the Court of Criminal Appeal ought to have intervened in this aspect and we say that on both bases leave ought be granted.

GLEESON CJ: We do not need to hear you, Mr Ellis.

The Court is of opinion that there is no reason to doubt the correctness of the decision of the Court of Criminal Appeal in this matter and special leave to appeal is refused.

We will adjourn for a short time to reconstitute.

AT 3.00 PM THE MATTER WAS CONCLUDED