Camilleri v The Queen M32/2001 [2002] HCATrans 214 (3 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M32 of 2001

B e t w e e n -

LESLIE ALFRED CAMILLERI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 MAY 2002, AT 10.52 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER: May it please the Court, I appear on behalf of the applicant. (instructed by Stary Myall)

MR P.A. COGHLAN, QC: May it please the Court, I appear with my learned friend, MR P.B. KIDD, for the respondent. (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

GLEESON CJ: Yes, Mr Croucher.

MR CROUCHER: If the Court pleases, if I could deal first with the ground concerning the direction on lies and the consciousness of guilt. The substance of the direction that is impugned is contained at paragraph 15 of the written submissions, which is at page 484 of the second application book.

GLEESON CJ: Well, you succeeded in persuading the Court of Appeal that this direction was wrong - - -

MR CROUCHER: Yes.

GLEESON CJ: - - - but they held that it was unduly favourable to your client.

MR CROUCHER: Yes, well, Mr Justice Ormiston described it as an error, but favourable, whereas the majority, in the end, said it did not amount to a miscarriage of justice, which suggested that some sort of direction that should be followed for future cases. In my submission, it was wrong to take that view. It is a fundamentally erroneous direction, given the way in which it was couched.

HAYNE J: Well, assume it to be wrong in law to say what the trial judge did, how did that work to the detriment of the accused?

MR CROUCHER: In this way. It basically says that the ultimate question of guilt can be decided by a conclusion of - and is decided by a conclusion of - the question of consciousness of guilt, unfavourably to the applicant. That is the simple point in the application.

GLEESON CJ: But that overlooks the context of this, does it not, which was that it was, in part, a commentary on an argument that was put by the prosecution?

MR CROUCHER: In my submission, it was clearly part of the directions.

GLEESON CJ: Quite, but it was a part of directions that arose out of an argument that had been put by the prosecution.

MR CROUCHER: Well, I am not sure that that is so, your Honour. In fact, I do not understand your Honour's point.

GLEESON CJ: Go ahead.

MR CROUCHER: The second factor which the court considered was significant was that it was favourable in the sense that there was a direction that consciousness of guilt had to be proved beyond reasonable doubt, whereas that was perhaps unduly favourable in the sense that, in line with Edwards, it has been simply one of the various factors that was relied on in the case. It need not have been proved beyond reasonable doubt in order to be relied on. However, in my submission, that does not assist the Crown, because it just gives undue prominence to that particular piece of evidence in the end, and when the judge says to the jury these words, that:

you come to the finding that someone has told a lie by reason of consciousness of guilt, you have in fact found that person guilty -

"have in fact found that person guilty" -

because you have decided that the lie has been uttered because the individual is aware of his own guilt; so inherent in that notion is a finding of guilt.

It is taking it far too far, and placing too great a prominence on the question of consciousness of guilt. It was merely one piece of evidence in the huge amount of evidence in this particular case; the principal evidence being, of course, the evidence from the co-offender, or the co-accused.

GLEESON CJ: Could you just remind us, Mr Croucher. What was the defence case?

MR CROUCHER: The defence case was, as the Court of Appeal rightly said, that the applicant was in the car all the time, but that he was in a drunken or drug-induced stupor throughout most of the time, and was not involved in the rapes or in the killings.

HAYNE J: Well, the DNA evidence of the shirt was a bit of a hurdle.

MR CROUCHER: Precisely, your Honour. Precisely.

HAYNE J: The suggestion was that the jury might have been left in doubt that the accused man had been in a drug-induced stupor - for a period of what time?

MR CROUCHER: It was over several hours.

HAYNE J: Many hours, was it not?

MR CROUCHER: Yes.

HAYNE J: Waking at key points of a journey. Is that right?

MR CROUCHER: Yes. I understand the Court's point. It is said - - -

HAYNE J: At the end, the hurdle you have to get over is this, is it not? This was a very strong Crown case.

MR CROUCHER: That is accepted.

HAYNE J: If that is so, why should we be persuaded that it is arguable that there has, in the end, been a substantial miscarriage of justice in this case?

MR CROUCHER: Because there are some errors that are so fundamental as to go to the root of the proceedings.

HAYNE J: This is not a Wilde case, is it? It is a misdirection case.

MR CROUCHER: In my submission, it is one that falls into the Wilde category, because it is taking away - on view of it, at least, it is apt to take away from the jury the ultimate question, or telling the jury that they have decided the ultimate question by its decision on one small part of the case. That is the danger. It was a prominent piece of evidence, and the Crown gave it prominence in their final address, understandably - the subsequent behaviour, and so on - and the lies, and so on - but, in the end, the real evidence - or the most important evidence, obviously - was that of the co-accused, who - - -

HAYNE J: That was evidence which did not give him a minor role in the events that occurred. Is that right?

MR CROUCHER: No, clearly - - -

HAYNE J: It had him killing the girls - - -

MR CROUCHER: I am sorry, your Honour, we might be at cross-purposes. The co-accused's version was that they were equally, if you like, involved in the rapes and abduction, in fact, even - - -

HAYNE J: Yes, but that the co-accused killed them.

MR CROUCHER: Yes, but the co-accused, at the direction of the applicant, killed - - -

HAYNE J: Yes. So it was a co-accused who had, by then, pleaded guilty, and been dealt with, who was not assigning to himself a minor role in the events that had happened.

MR CROUCHER: I accept that, your Honour, except that he was saying, "He told me to do it, and he effectively forced me to do it. He threatened that he would kill me or harm me if I did not do what he told me to do.". At the time, of course, it was clear that, at least on the Crown case - and the way the case proceeded was that at the actual time of the killing, the applicant was not at the scene of the killing, but was at least somewhere between the killing scene and the car, or perhaps at the car. That is something that becomes relevant in my other grounds, that I will come to shortly.

The simple point about the consciousness of guilt point is that it is just so fundamental, because it really does go to a question of something equivalent to the standard or burden of proof or the elements of the offence. When you say to a jury, "If you find X, you have found him guilty", when in fact that is not the case. That is the danger. I think that there are a couple of other grounds to consider, if I could move onto those in order. The second which I will consider, your Honours, is ground (c), which concerns a failure to leave manslaughter.

The complaint in this case is principally that, whilst clearly the jury's verdict must have involved a rejection of the applicant's stupor hypothesis - if I can put it that way - that is the way the Court of Appeal put it - there was, in my respectful submission, a halfway house that was left open on the evidence, namely, that because there was evidence corroborating the co-accused's version, namely, that the applicant was involved in the abduction and rapes, and that corroboration principally came in the form of the DNA evidence that your Honour spoke of before - nevertheless, they may not have been prepared to accept him as to the ultimate events.

That being so, it was open to the Crown to have run murder on the basis of common purpose - Johns-type reasoning or McAuliffe, or that sort of reasoning. Indeed, at the outset of the trial, the Crown floated that idea, but the learned judge said, "No, that really involves a rejection of your principal hypothesis, namely, that the co-accused was directed by the applicant to kill." Later on in the trial, after the charge had been given, there was also some discussion about further directions, following a question from the jury.

The jury asked, in particular, a question - this is at pages 349 to 443 of the application book. It is summarised in paragraph 25 or page 487 of the application book, where, having had a direction on acting in concert, the jury asked whether, in effect, the person - because the direction given was in terms of a robbery, and a driver in a robbery. The jury asked, at those pages:

whether the person who drove the robbers to the scene is guilty of murder if in the course of the robbery the other robbers may have intentionally or otherwise killed a bank employee and then got away in the car -

Now, in my respectful submission, that sort of question squarely raises - the jury at least are considering a version where they accept the Crown's case that there was a joint episode up until at least the point of the turning off the road - in other words, involving the rapes and abduction, and so on - but thereafter - and it was a principal point of attack by the defence.

The crime scene itself did not seem, on the defence version, to square with what the co-accused was saying, so that it left open the possibility that, yes, they had been in a joint plan to rape and abduct, and therefore, as well, a foresight of possibility that the co-accused would go ahead and kill, with the requisite intention to kill or cause grievous bodily harm, a classic Johns or McAuliffe situation. That being so, every time a classic Johns or McAuliffe situation is raised, so too is a classic manslaughter situation raised, in my respectful submission. It is a very, very fine line - - -

GLEESON CJ: Being, in the present case, exactly what?

MR CROUCHER: That, for example, it was an agreement to commit these rapes, and so on, the incidental crime being a manslaughter. He foresaw the possibility that the co-accused would go ahead and satisfy the test for unlawful and dangerous act of manslaughter.

GLEESON CJ: The unlawful and dangerous act being what?

MR CROUCHER: Assaults giving rise to serious injury, an appreciable risk of serious injury, that sort of thing. Now, if manslaughter was open at all, it should have been left to the jury, and the failure to request that it should be left is not a hurdle. It is certainly a factor to consider, but this Court itself has said that in certain cases, that is not necessarily a hurdle. In any event, it is not clear, particularly in light of those questions asked, that a jury, properly instructed, would not necessarily have returned a verdict of manslaughter, or would - put it the other way around - would necessarily have recorded a murder verdict. That is the point.

Can I move onto the next ground about acting in concert. The question that arises here is the directions on acting in concert and whether or not, on the question of presence, which is required still under the law - could have been made out in the circumstances. As I indicated before, the version given by the co-accused, Mr Beckett, was that he and the applicant led the two girls down to the creek area, the car having been parked some distance away; on the evidence, it was something like 270 to 350 metres, which was thought to be about 500 metres by the crime scene examiner. It was thought to be a fair distance away. It was through rugged bush.

The applicant is then alleged to have instructed, once they were there, the co-accused to kill the two girls. There is some break, it seems, in the proceedings, and then, after a while, the co-accused does what he is told and kills one girl, and goes back to kill another. During this time, he cannot see the applicant anywhere. The trial was conducted on the basis that the applicant was not there at that time. There was subsequent evidence that when the co-accused had finished these acts and cleaned up, in some sense, he went back to the car and the applicant was waiting back at the car, and then there was this talk about, "Did you see the demon?" and so on, this sort of thing. The point being, it was left open, as the Court of Appeal itself found, that on the most favourable version that the applicant could have been as far away as the car, at the time.

The question then is whether, for the purposes of acting in concert - because that was one of the ways in which the case was left - the other way was counselling and procuring, namely, that he had instructed him to kill - could be made out. Osland is the most recent exposition of acting in concert in this Court and still requires that there be presence. The question is, does presence have any meaning, in the end? How far away can one be, yet still be present? Now, what the court relied on below was Jensen & Ward's Case, the principle of which is extracted at page 488 of the application book, in paragraph 34, where it was held at page 201 of Jensen & Ward that a person is said to be:

"present at the scene of the crime even if he remains some distance away, provided that he is there for some purpose designed to facilitate or encourage the actual commission of the crime; for example to assist in the escape of the person . . . who perform[s] the act or acts which constitute the crime".

It is my submission that there ought to be some limit to the extent to which one can be away from the scene of a crime, yet still be present, whatever that might mean. Otherwise, presence has no meaning. It is just a Delphic notion. Now, in this case, this issue was not raised, but it seems to have been misunderstood. The directions, as well, that were given on the topic, if anything, suggested that the presence was not required for the purposes of acting in concert. They did not expressly say that, but the directions, as I say, which are to be found at 167 to 168 of the application book, do not speak of presence. They imply that the person may be away.

HAYNE J: But the Jensen & Ward concept is a compound concept, is it not, the fulcrum of which is, "facilitate or encourage"? You can be present if you are some distance away, so long as it is there for a purpose, "designed to facilitate or encourage". Do you say Jensen & Ward is good law?

MR CROUCHER: No.

HAYNE J: You say, "facilitate or encourage" is not a sound principle?

MR CROUCHER: No. Presence has to tested by some other physical limits. Otherwise, if there is no notion to what presence means, then one could be on the other side of the world, facilitating or encouraging by telephone or by the Internet.

HAYNE J: Or you could be present with your backed turned, not knowing what is happening. Physical presence is an elusive concept, unless you have it there in relation to criminal intent.

MR CROUCHER: But if you were there with your back turned, at the scene, five feet away, it would be mere presence, and not presence for the purposes of aiding and abetting.

HAYNE J: Do you accept that a view of the facts was that Camilleri was at the car to facilitate the crime by means of providing escape by the only practicable means?

MR CROUCHER: Yes. But it was not put that way. Unless the Court has any questions for me, those are the submissions.

GLEESON CJ: Thank you, Mr Croucher. We do not need to hear you, Mr Coghlan.

We are not persuaded that there has been any arguable miscarriage of justice in this case and the application is dismissed.

AT 11.10 AM THE MATTER WAS CONCLUDED