Cumberworth v The Queen B60/2001 [2002] HCATrans 590 (15 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B60 of 2001

B e t w e e n -

NIGEL GORDON CUMBERWORTH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 12.15 PM

Copyright in the High Court of Australia

MR P.E. SMITH: May it please the Court, I appear for the applicant. (instructed by Terry Fisher & Company)

MS L.J. CLARE: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

GAUDRON J: Yes. Thank you, Mr Smith.

MR SMITH: Your Honours, the special leave question which I submit - - -

GUMMOW J: Wait a minute.

MR SMITH: I am sorry.

GUMMOW J: You need an extension of time, do you not?

MR SMITH: I do need an extension of time, your Honour, yes.

GAUDRON J: Is that opposed?

MS CLARE: No.

GAUDRON J: We will grant you an extension of time and then proceed to the merits then.

MR SMITH: Thank you, your Honour. The question which arises is whether the test applied by the Court of Appeal concerning the conduct of counsel is too narrow.

GUMMOW J: We were rather shocked that there was no reference to what we decided in TKWJ on 10 October 2002, HCA 46. We live in a world of electronics now, and these things are supposed to be read by you people day by day.

MR SMITH: Yes, I apologise as to that.

KIRBY J: But, in any case, your submission is that the overriding question, the ultimate question is whether there has been a miscarriage of justice.

MR SMITH: That is true, your Honour.

KIRBY J: And that rules perhaps suitable in civil proceedings have to be adapted to a case where that is the ultimate question before a court.

MR SMITH: That is true, your Honour.

KIRBY J: Now, the problem that seems to me, and this may be a catch-22 problem, your client was not represented in the Court of Appeal, is that correct?

MR SMITH: He was not.

KIRBY J: He appeared in person.

MR SMITH: Yes.

KIRBY J: This Court, by its authority, cannot receive fresh evidence and, therefore, we do not have and could not receive any affidavit which established, it not having been placed before the Court of Appeal, the circumstances that led to your client's proceeding in a different way in the second trial, including any affidavit by your client as to his resistance to that course, any affidavit by the barrister concerned, any affidavit by solicitors as would otherwise be provided in the Court of Appeal. We do not have that.

So all we have is a say-so that your client was reluctant about the course that was taken in the second conduct of the trial, and the problem would then be, do you have a launching pad in fact to put before this Court the assertion that there was such an error in the conduct of the second trial that would result, or might result, in a miscarriage of justice that would invite the intervention of this Court. But where is the factual substratum?

MR SMITH: Well, all I can really rely upon, your Honour, is that my client did raise these issues orally before the Court of Appeal - - -

KIRBY J: Well, you say that, but that is not evidence. That is just a statement from the Bar table. It is not sworn evidence. I am very mindful that your client was at a disadvantage. He did not have a lawyer there. It is a great pity that you were not there rather than here. At least there might have been a basis then put, but this is a very critical issue before this Court could get into the question of the error on the part of counsel, which for myself, I can see, is an arguable point. We cannot just act on statements from the Bar table. This Court would have to act on evidence, and we cannot receive fresh evidence, and there was no evidence before the Court of Appeal. Do you see the problem that I am raising?

MR SMITH: I do see the problem.

KIRBY J: What is your solution?

MR SMITH: The only solution, really, is to take an approach that it seemed that - and this is understandable, I am not criticising the Crown here, but no objection was taken to my client's statements from the Bar table before the Court of Appeal as to what happened in terms of the decision not to give evidence or call Miss Reddacliff, and we could proceed, if you thought appropriate, on those statements, in light of the fact that he was not required to go away, and in affidavit form, put forward such matters before the Court of Appeal.

KIRBY J: So you construct your case this way; you say this is not, by its peculiarity, a case where you do not have some foundation in fact. You have the transcript of the first trial in which your client gave sworn evidence and in which Miss Reddacliff gave sworn evidence. So that evidence was before the first trial and then unfortunately the barrister in that trial was injured and the case could not be completed.

We have the objective facts of the evidence at the second trial where your client did not give evidence and Miss Reddacliff was not called, and we have the statements recorded in transcript before the Court of Appeal that your client protested that he had been opposed to the advice that he had been given by counsel and that he did not wish to proceed in this way and just went along with it because of the fact that counsel was advising that and you say that that is sufficient to cause enough anxiety to require that the matter go back to the Court of Appeal where one might hope you, or somebody else, could present the fresh evidence to be considered and the issue of miscarriage of justice to be properly determined on evidence?

MR SMITH: Yes, your Honour. I accept it is tenuous but unfortunately I have to rely on that in light of the fact my client argued the appeal himself.

KIRBY J: Why did your client not have representation in the Court of Appeal, but has it before the High Court?

MR SMITH: I am acting pro bono, your Honour.

KIRBY J: Did he apply for pro bono representation before the Court of Appeal? Do you know that?

MR SMITH: I do not know that. I know that his legal aid was withdrawn because he did have aid for the appeal and it was withdrawn on 25 March 1999, so that was about two months or so before the appeal was heard, or the argument took place, at least.

KIRBY J: I have not read the transcript of the first trial that was aborted, but do you tell me that your client at the first trial gave sworn evidence to the effect that he had nothing to do with the actual stabbing of the deceased, that he saw the aftermath of the stabbing and that this was performed by the female alleged accomplice and that Miss Reddacliff was called, who gave sworn evidence at the first trial, in the hands of the first barrister, that the female alleged accomplice had admitted to her that she was the person who, with the co-accused, had committed the stabbing on the deceased?

MR SMITH: That is so, your Honour.

KIRBY J: And that when asked, "Well, you can't let Nigel carry the can", she said, "Well, I am not going in, he can do so", words to that effect?

MR SMITH: Yes, that was the evidence called at the first trial.

KIRBY J: It is a rather worrying case as far as I am concerned.

GAUDRON J: Well now, Mr Smith, the record in this Court contains your client's written instructions to his legal representatives in the second trial?

MR SMITH: Yes.

GAUDRON J: And those written instructions contain the words:

I give these instructions voluntarily with no inducement offered to me or threat made to me by any person.

page 401.

GUMMOW J: And they say:

I understand that this means that the jury will not hear the evidence of Janet Reddacliffe -

et cetera, at the top of page 401?

MR SMITH: Yes.

GUMMOW J: So it was not something that was not in everyone's mind?

MR SMITH: No, it was not.

GAUDRON J: And those written instructions indicate that the various courses were explained to him, and their consequences?

MR SMITH: Yes.

GAUDRON J: In the light of that and in the light of the decision in TKWJ to which you did not refer in your written submissions, how can it be said that there was a miscarriage of justice?

MR SMITH: Your Honour, my argument is that after a close examination of all of the evidence, as well as taking into account such written instructions, there was a miscarriage here in that, leaving aside the calling of Reddacliff and my client for the moment, there was compelling evidence from other witnesses even on the second trial which was directly contradictory to Ms Epseg's evidence which, for example, she denied having sexual intercourse with Mr Juma, which was the cause for the deceased's complaint to them, but Mr Richter who was living in that set of units as well said, no, he heard sexual-type moaning and heard Mott, the deceased, calling out that the radio should be kept down, for example. There was no blood from the deceased on my client's clothing which was located that evening at the St Vincent de Paul hostel. Ms Epseg's ring was found in the room - - -

GAUDRON J: It was not located that evening, was it?

MR SMITH: Yes, I am fairly confident - - -

GAUDRON J: Your client was at large for some weeks after this, was he not?

MR SMITH: He was.

KIRBY J: But he had put it in a bag at the St Vincent de Paul where it was being kept and it was found there.

MR SMITH: I am fairly confident it was about 10 pm that the clothing was seized. In fact, there was some blood on his shirt from a fellow called Andrado, with whom my client had a fight that afternoon, so I suppose the submission is that it had not been washed obviously because Mr Andrado's blood was found on that shirt.

KIRBY J: And you were saying a ring was found on the floor. Where was that exactly in relation to the body of the deceased?

MR SMITH: The ring was found apparently when there was a cleaning up taking place some days later, but it was near the largest bloodstain according to a person who lived in the units. But I cannot be more precise than that in the sense that I can say it was inside Mr Mott's unit but I am not exactly sure, apart from it being near or next to the biggest bloodstain which was there.

KIRBY J: To overcome what appeared to be fairly carefully drawn instructions you basically have to say that so powerful was the evidence of Miss Reddacliff, and so forensically important to the proper conduct of the trial, and so important was the evidence given by the accused at his first trial, that the proper presentation of his case to the second trial obviously required that those matters be placed before the jury and that they were endorsed by the first barrister who was involved and that that outweighs the effect of the written instructions which would necessarily be those of the person in custody without any other facility to have his trial properly presented if his counsel did not present them in the way he considered was appropriate at the second trial.

MR SMITH: I have to say that because I would concede, looking at the authorities to which I refer in my outline, but not the High Court authority as we have established, that in most cases flagrant incompetence might be the appropriate test, but there must be some cases, and I submit this is such a case, where one does not have to reach such a threshold issue and if one examines all of the evidence then a tactical decision like this can be impugned successfully by an accused person if there is significant evidence which would have made a difference to the outcome of the case. In this case the appellant's evidence - - -

GUMMOW J: I think to get that up you would have to get TKWJ reconsidered, which is an unlikely event.

MR SMITH: I see. But I suppose what I am really submitting, your Honours, is that if Mr Cumberworth had have given evidence and called Miss Reddacliff then that would have neatly dovetailed into the evidence of Mr Richter, the finding of the ring and the blood of the deceased being on the sarong of Ms Epseg, that is, that it was she and Juma, in fact, that murdered the deceased, not Cumberworth. Without Cumberworth's sworn evidence, of course, the jury was simply left in the second trial with unchallenged evidence given by Epseg, albeit contradicted by Mr Richter, but not on the key question - that is, what happened in the room.

KIRBY J: Please help me speculate. What could possibly be the reason when a person is facing a charge of murder, the highest and most serious offence known to the calendar, for not calling him to say that somebody else did it and calling another witness to affirm that that other person had admitted that she did it and given a reason which was less than entirely honourable for continuing with her story? Now, what could possibly be the reason for not, as in the first trial, calling the accused and the witness to say that? He had convictions, did he not?

MR SMITH: He had some convictions.

KIRBY J: But he was facing a murder charge. This is not jaywalking. This is murder we are talking about here.

MR SMITH: Yes. So in a tactical sense, I suppose counsel could have been concerned about the previous convictions being raised.

KIRBY J: Had they been raised in cross-examination during the first trial?

MR SMITH: I think they had.

GAUDRON J: Was not one of the difficulties that there were likely to be inconsistencies between what he said at the first trial and what he said at the second, and counsel was alive to the fact that if he gave evidence these inconsistencies would be exploited by the prosecution in cross-examination?

MR SMITH: Yes.

GAUDRON J: I do not know what those inconsistencies are, but that seems to have been the basis of the instructions and, without something from him and given Miss Reddacliff's criminal history, it would just look like something that she had cooked up. Is that not what they were saying?

MR SMITH: That may well have been the position taken by counsel at the second trial.

KIRBY J: But the result of that was that, pitched against the possibility of evidence of dubious value was nothing, no evidence. No evidence from your client, no evidence from Miss Reddacliff.

MR SMITH: Indeed, Justice Derrington in the Court of Appeal made that very point. He said at record 120 at line 5:

Although there was no obligation on this appellant to give evidence in his defence, his failure to do so left the sworn evidence against him, particularly the evidence of his direct involvement in the attack on the victim, uncontradicted by him and otherwise generally acceptable if the jury so regarded it.

KIRBY J: In Queensland the right to make an unsworn statement has been abolished, has it not?

MR SMITH: Yes.

KIRBY J: Did this accused make an unsworn statement to the jury? Was that before the abolition or not, at the second trial?

MR SMITH: No, as far as I am aware - - -

KIRBY J: So he gave neither evidence nor his version of events, nor did his counsel call the witness who gave evidence supporting his version of the events?

MR SMITH: They did have his record of interview that was played in which he denied involvement.

KIRBY J: Is there any point in this case - it is hinted in your written submissions that the Crown ought to have called certain of the witnesses in presenting the entire case fairly to the jury?

MR SMITH: I have not specifically addressed that issue.

KIRBY J: Who were the other witnesses apart from Miss Reddacliff?

MR SMITH: There was a witness called Mr Duro, who gave evidence at the first trial, but not the second. I am not exactly sure what evidence he gave, I am sorry, your Honour.

KIRBY J: That does not help.

MR SMITH: No, it does not. No, I can tell, your Honour. Justice Chesterman notes in the decision that Mr Duro gave similar evidence to Miss Reddacliff. I will just turn that up.

KIRBY J: I thought there were two witnesses who confirmed the evidence about the statement by the alleged female co-accused?

MR SMITH: There is. At page 136 of the record, Justice Chesterman at line 41 makes the point that my client:

wished to call -

not only evidence from Reddacliff but also from -

Barry Duro and William Rowbotham. The last named could apparently give evidence similar to Ms Redgcliffe's; namely that Ms Epseg had admitted to stabbing the deceased.

KIRBY J: Why was that not called at the second trial?

GAUDRON J: It was called at the first trial.

MR SMITH: I cannot tell your Honour that. I suspect that the witness was not located by the Crown.

KIRBY J: These were residents of a boarding house?

MR SMITH: Yes, they were. So, your Honours, in conclusion my submission is that there is sufficient material upon which you can rely in this case that I am not breaching the decision in Eastman's Case and in this case examining all of the evidence, my submission is that even though one has not reached the stage of flagrant incompetence of counsel, a miscarriage of justice has occurred and that should be sufficient, in my submission, to grant leave in this case.

KIRBY J: Yes, thank you.

MR SMITH: Thank you, your Honours.

GAUDRON J: Thank you. Yes, Ms Clare.

MS CLARE: If the Court pleases. If I can just take the point as to what the state of the evidence was or could have been. Firstly, the applicant had taken part in an interview with police which was recorded. In that interview he denied any involvement in the injuries to the deceased. He also implicated his co-accused, Juma, but exonerated the witness, Epseg, in that version to police.

At the first trial he was cross-examined about the inconsistencies between his new version, which was that Epseg had joined in with the co-accused to kill the deceased. So he was cross-examined about those inconsistencies. He claimed that he was trying to protect Ms Epseg, but it was pointed out quite forcefully in cross-examination, and he agreed with the proposition, that he had in fact gone well beyond merely protecting her in the degree of detail that he had given to the police in respect of that. There were various other - - -

KIRBY J: There was some alleged conversation, was there not, between him and the co-accused about protecting Ms Epseg?

MS CLARE: No.

KIRBY J: I thought I read that somewhere.

MS CLARE: On my understanding of the material, your Honour, his position was that that was his reasoning for giving the answers which he did in the record of interview but it was not a completely satisfactory explanation under cross-examination because he agreed that he had gone well beyond that purpose in the way he had gone about telling untruths to the police.

There were other aspects of his evidence which were inconsistent with other witnesses, like Mr Richter and Miss Nona and so forth. He was left to explain his reason for fleeing from the scene and being missing for three weeks before the police found him which was left without any satisfactory explanation. So there was, one might think, a fairly powerful cross-examination of him.

KIRBY J: That may be so, Ms Clare, but the net result of the decision that was taken at the second conduct of the trial was that he had nothing, not a feather to fly with. It is a purely accusatory procedure. He did not have his own version placed before the jury, he did not have the version of Miss Reddacliff, did not have the statements of Mr Duro, did not have the statements of Mr Rowbotham, and the concern that I have is whether he had a fair hearing of his case.

MS CLARE: I can appreciate that, your Honour, but, in fact, his interview was played to the jury, so his denials were before the jury.

KIRBY J: Yes, but that is nothing like having the witnesses, weak or damageable as they may be, Miss Reddacliff and Mr Duro and Mr Rowbotham, it is nothing like having them placed before the jury and the statement by Miss Reddacliff was rather telling. When the confession was allegedly made by Ms Epseg she said, "You can't let Nigel wear it", and she said, "I'm not going in, he can do it", words to that effect.

MS CLARE: Yes, there were difficulties with the evidence of Miss Reddacliff which were quite substantial. For example, firstly, she was alone, on her account, when the admission was made. She was a 14-year old girl who had a criminal history - a substantial criminal history for her age for a series of armed robberies. She denied initially in her evidence at the first trial that she had been anything more than friends with the applicant, but she then was forced to concede that she had previously described him as a boyfriend in another dealing that she had had with the police at an earlier time, that he had been her boyfriend.

It was then pointed out in her cross-examination that on her version she had been told by this woman that this man with whom she was very friendly and who had been her boyfriend was in fact sitting in prison for something which she now knew or believed to be untrue, that is, that she had evidence that he did not commit it, yet she accepted that she never made any attempt to contact the police or to pass on this information to anyone.

KIRBY J: Yes, well I understand the force of that, and that is good jury stuff, but the fact is that these are people, many of them with alcohol, and one might infer, drug problems, long associations with the police, really on the borders of society; they are the type of people who are going to run away and they are not going to feel entirely confident to run along to the police and make allegations of their own.

MS CLARE: No.

KIRBY J: At least that is an arguable way to understand the conduct of Ms Reddacliff.

MS CLARE: Well if I can start from this point, even if the applicant's affidavit, which is not receivable in this Court, were put before the Court of Appeal, it contains acceptance by him that it was a fully informed decision by him not to go into evidence. If he had decided not to give evidence, then it would be very difficult for the defence to then call witnesses to say that this woman had made a confession to them - I can only speak about Reddacliff, because there is no material about the others - but when Reddacliff's own credibility was very thin and when the jury would already have a version from the applicant, which was to exonerate Ms Epseg.

KIRBY J: But how does the Crown deal with the two objective features of the case, the clothes of the applicant, which had no bloodstains from the deceased on them, in what was apparently a very bloody encounter and, secondly, the ring of Ms Epseg, which was found near the body of the deceased, when that was inconsistent with her story?

MS CLARE: In relation to the ring, I am not sure if it goes further than the fact that she was a neighbour of this man and that she had also been involved in the cleaning up of the blood after the attack. In relation to the blood on the clothes, the medical evidence was not so clear as to whether or not there would have been immediate outpouring of blood or whether it would have been an incremental leak from the body cavities, because there was largely internal bleeding and the pathologist seemed to be saying that or made some concessions in cross-examination that he could not exclude the fact that there would have been more blood at the time that they were there, but what was known was, even on the applicant's case, that Juma was responsible for inflicting the fatal injuries and Juma, who was seen outside of the flats when the ambulance and the police arrived, had very little blood on him as well. That is the first point.

The second point is that the Crown never accepted that the opportunity for the applicant to change his clothes was closed, that is, that the evidence about his access to his clothing at the hostel was not such as to - - -

KIRBY J: But that is hard to reconcile with the blood of another person being on the clothes.

MS CLARE: Yes. There is a description of clothing worn by the applicant close in time to the killing, which was different to the clothing that he had worn earlier that afternoon in the other incident involving an assault of somebody else. So the Crown argued that he had, in fact, changed his clothes from the earlier assault before he was involved in this attack on the deceased and the Crown argued that it was possible, he had the opportunity, on the available evidence, to return those earlier clothes to the hostel.

KIRBY J: Well, I would not be troubling you, Ms Clare, with all these questions and concerns, if the applicant had been represented before the Court of Appeal.

MS CLARE: I understand.

KIRBY J: I say once again that this is a real defect of our administration of justice, as far as I am concerned, that the Dietrich principle applies at trials and then people do not get represented before Courts of Appeal. The Courts of Appeal have to struggle with the case and then they come up here with pro bono assistance and it is a very unsatisfactory situation, as far as I am concerned, because had he been represented in the Court of Appeal, the affidavits and the material and the argument would have all been advanced in a proper way. The matter that concerns me is whether the net result is a satisfactory one from the point of view of the administration of justice.

MS CLARE: Yes.

KIRBY J: I mean, poor evidence, weak evidence, is better than zero evidence. This man went to trial on his second encounter with a jury with zero evidence supporting his case.

MS CLARE: Well, what he had, your Honour, was a version of complete denial by him.

KIRBY J: Yes, well, he lived in the flat, he was a down-and-out, he was a friend of Juma and the deceased was a person who had irritated him in the past and he did not have the alternative theory placed before the jury and the Court of Appeal really, in fairness to their Honours, did not have the full matter elaborated there. I have a sense of disquiet.

MS CLARE: If the alternative theory that your Honour is referring to is the involvement of Epseg, that was, in fact, raised by the trial judge in his summing up to the jury. So his Honour actually said that the - - -

KIRBY J: But without evidence, Ms Clare, the judges can speak until they are blue in the face, but unless there is an evidentiary foundation juries properly give statements from the Bar table and the Bench short shrift normally.

MS CLARE: Well, where the onus, of course, is on the Crown, it was something that the jury was entitled to take into account. His Honour said that the jury might think that Ms Epseg was more involved than she admitted but, at the end of the day, even if the court could take into account, as I said, the affidavit of the applicant, it goes no further than saying that this was a fully informed decision that he made. What is sought now to be done is to ask the court to overturn a conviction because he made a decision not to call evidence.

KIRBY J: What does a person do who is a person with an alcoholic problem, a long string of convictions, is represented by counsel who says that this is the way he thinks the matter should be presented and he is presented with some instructions to sign? I remember getting instructions from clients years ago, and they were not in that disadvantaged situation, but they depend very much on what counsel say to them and more so if they are in a criminal predicament and they do not have really any alternative to get someone else to represent them in a different way. But the first counsel who represented this man presented his alternative theory to the jury and the second did not.

MS CLARE: Well, with respect, your Honour, from the remarks of the court below, it would seem that this applicant was not a typical downtrodden, down-and-out, uneducated person.

KIRBY J: Well, he was described as intelligent.

MS CLARE: Yes, and not likely to be overborne in the judgment, I think was a description that was given to him.

GUMMOW J: Anyhow, he does not say he was overborne.

KIRBY J: Or we do not have his affidavit. We do not have a properly prepared affidavit which sets out all of the matters that would have been set out if it had been properly conducted in the Court of Appeal, instead of in this short encounter with the case in the High Court of Australia.

MS CLARE: But the argument, in my submission, against me really boils down to a complaint that the conviction should have been overturned because he was convicted, because in every criminal trial forensic decisions have to be made.

KIRBY J: That is not how I see the argument, Ms Clare. I see the argument that, but for the chance incident with his barrister in the first trial, he would at least have had his theory of the case, and his evidence and the evidence of his witness put before the jury. His barrister was then knocked over in a car accident, the case was aborted and the second time it was conducted he did not have his evidence and the evidence of his witnesses placed before his jury and that is why he complains. However, I think we understand the points that you put and I think I understand where the case lies.

MS CLARE: Thank you, your Honour, those are my submissions.

GAUDRON J: Yes, Mr Smith, anything in reply?

MR SMITH: The only matter on reply, your Honours, was if one is looking at the credibility of any of the witnesses, there were three objective facts here: the ring, the blood on Ms Epseg's clothing and no blood on my client's clothing and they are the three matters which, I submit, allow one to consider there has been a miscarriage here. That is all I wanted to say, I think, your Honours.

GAUDRON J: What I am about to say is said by majority. The record before this Court, which includes the applicant's written instructions of 9 November 1998, indicate that the decision of the applicant not to give evidence at his second trial and not to call Ms Reddacliff, was an informed tactical decision. That being so, it cannot be said that he lost a chance of acquittal that was fairly open and thus there has been no miscarriage of justice: see TKWJ v The Queen [2002] HCA 46. Accordingly, special leave is refused.

AT 12.54 PM THE MATTER WAS CONCLUDED