Mullally v The Queen [2004] HCATrans 268 (6 August 2004)

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Mullally v The Queen [2004] HCATrans 268 (6 August 2004)

Last Updated: 19 August 2004

[2004] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P9 of 2003

B e t w e e n -

PATRICK EDWARD MULLALLY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 2004, AT 11.48 AM

Copyright in the High Court of Australia

MR P.E. MULLALLY appeared in person.

MR R.E. COCK, QC: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Western Australia))

HAYNE J: Yes, Mr Mullally.

MR MULLALLY: If the Court pleases, this application raises, it is submitted, a question for special leave in that the Court of Criminal Appeal in its application and interpretation of the leading authorities on section 689(1) proviso erred in principle. There had been an appeal finally before the Court of Criminal Appeal on two grounds. The first ground was, with respect, the admission, it was argued, of inadmissible evidence which had been marked as exhibit P8. The Court of Criminal Appeal found in favour of that ground and said that an error of law had been established.

What flows from that, it is submitted, is that once an important document such as P8 was admitted into evidence that the applicant then failed to be given what could be described as a fair trial. The reasons for advancing that exhibit P8 was an important document or, in my submission today, evidence which was not immaterial are these. This was a case at trial which was brought on the basis of an honest claim of right for the deduction of legal costs from a trust account. It was an important issue for the jury as to whether the applicant had formed the requisite intent to commit a crime of stealing.

Exhibit P8 was fought for by the Crown in the prosecution as being admissible. That was over the objections of counsel for the applicant, and fought for it on the basis that it was a document which established - although not signed by any person, the inference they said to be drawn was that it was a contemporaneous note of the thoughts and understandings of the applicant at a very early stage in the chronology which gave rise to the alleged commission of the offence. It was therefore, we say, a document which was highly material for the jury and certainly it could not be described as being immaterial.

The way that it is alleged then that the Court of Criminal Appeal fell into error was in its application of the principles flowing from previous decisions of this Court with respect to the application of the proviso. With respect, what appears to flow from the reasoning of the Court of Criminal Appeal – and the decision was written by his Honour Auxiliary Justice Olsson. I refer the Court to his determinations which are found at page 62B of the application booklet. He said:

In all of the circumstances, it is impossible to see how it could reasonably be said that the verdict of the jury was other than well nigh inevitable. I do not consider that the second ground of appeal has been made good.

In the pages before that he had analysed some features of the evidence before the jury which he found in his judgment to be before the jury and which, as your Honours will notice from the application, is disputed by the applicant. It is not simply, we say, a question of quibbling about the facts because we know that that certainly would not be a matter which we should ask you to be concerned about. What has happened here is that, as is evident from page 60 of the application book, the Court of Criminal Appeal found that the first ground of appeal, as I have said, had been made out.

Then in the following pages there is a consideration of the second ground, but nowhere in the deliberations can one detect any consideration of the nexus between the finding in favour of the first ground and the application of the proviso. I know it can be said that the cases to this Court with respect to the proviso are numerous, but nevertheless in this case, it is submitted with the greatest respect, that the court below misdirected itself on the principles and in particular it cited the case of Doggett and, in my respectful submission, did not adhere to the principles of Doggett.

In summary, in my submission, the way that it ought to have approached this case, bearing in mind the principles in Doggett, was to give due consideration to the impact of a finding in favour of ground 1 and it has failed to do so. The reasoning and deliberations of the written decision of the Court of Criminal Appeal, in my respectful submission, are confined to determining, in the absence of any consideration of ground 1, how strong the case was on other evidence before the jury.

It shines fairly clearly through the authorities, particularly Doggett and Gilbert, both of which I have provided this morning, that the strength of the Crown case is certainly one consideration in a determination whether the proviso should be applied. In the Doggett Case the court below had failed to give the Longman warning. This was a sex case and dated back some 18 or 20 years, I think. The Court naturally, in my submission, and properly addressed the issue of the impact of that failure upon the overall outcome of the case.

In this case the Court of Criminal Appeal failed to have any consideration to the impact of ground 1. The impact of ground 1, in my submission, was highly significant evidence to go before the jury. It really constituted, if it was the type of document that the Crown advanced at trial, that is the contemporaneous note of the accused person or tantamount to that, if it was that, it gave the jury some tangible written evidence that the accused person was significantly involved in the day-to-day activities of this client and therefore could hardly be heard to stand and say, “A mistake was made, there was an honest claim of right. The work was done by the firm and therefore the costs could be deducted from that client’s trust account”, because the jury had what the Crown said was a contemporaneous note that there was such a deep involvement that that argument could not possibly be reasonable or proper for an accused person in this case to make.

So, without paying attention, in my respectful submission, to the impact of upholding ground 1 as an error of law, if the Court of Criminal Appeal does not look at that, then it cannot be said to have abided by the principles set out in Doggett and Gilbert. That is really that the Court must look critically, in my respectful submission, upon the scenario which is ultimately presented to the jury with what I say is defective evidence, that is evidence which was opposed by accused’s counsel at hearing, admitted by the trial judge and from then on remains there and appears, with respect, never much to have been commented upon in directions from the judge at the hearing and not commented upon at all with respect to its impact by the Court of Criminal Appeal.

CALLINAN J: The trial judge did comment on it. It is in his summing up at 281.

MR MULLALLY: Yes, sir, but simply to say that it was there is a question of weight because it had not been signed, but that certainly was the only comment one could point to. There was certainly, in my respectful submission, no attention paid to it and its impact upon what the jury took away into the jury room by the Court of Criminal Appeal.

The second-last matter that I would like to mention is simply to draw the Court’s attention to those pages of Gilbert that I have mentioned in the cover sheet to the material.

HAYNE J: Gilbert was a misdirection case, was it not?

MR MULLALLY: They both were, sir, yes, Gilbert and Doggett. This case of course - - -

HAYNE J: This case concerns what is said to be the wrongful reception of evidence. The Court of Appeal in relation to the unsafe, unsatisfactory ground was required to embark upon its own review of the whole of the evidence. Why should we conclude that it is arguable that the court was wrong in saying that the case was overwhelming even if the letter was wrongfully received?

MR MULLALLY: Because, sir, with respect, it is obvious from the judgment that the reception of exhibit P8 was not considered by his Honour in his considerations of ground 2.

CALLINAN J: Mr Mullally, I just have to say to you that I have not formed any concluded view about that letter but it seems to me that if the jury accepted Mr Bolger’s evidence that you drafted the letter on his instructions and on the basis of the information he gave you, then that provided evidence of your knowledge and state of mind whether it was sent to anybody, whether it was signed or not. I am not saying that it is necessarily correct but it seems to me to be an arguable view. In any event, as Justice Hayne has pointed out to you, the intermediate court seemed to embark upon a very careful review of all of the evidence, as it was bound to do in deciding whether the appeal should be upheld. But you should not assume that I would regard the view as correct that the letter was inadmissible, as the intermediate court seemed to think it may have been.

MR MULLALLY: It certainly upheld that ground, sir.

CALLINAN J: I know. I do not know whether that is correct. The respondent says it was not correct.

MR MULLALLY: I have certainly based my arguments on the presumption that the finding of error of law by the Court of Criminal Appeal still stands.

CALLINAN J: I know you have.

MR MULLALLY: I think your Honour has crystallised exceptionally well the objection that I have to that very letter because it does those things that you point to and gave the jury a very tangible written praecipe of a person’s state of mind back in the days when these events were occurring. We all know that written records, signed or otherwise, provide human beings with a great deal of comfort and for that reason, because its authenticity and provenance was not proven at trial it was objected to at trial and that objection was raised as a ground in the Court of Criminal Appeal and the Court of Criminal Appeal unanimously upheld that ground and found that its admission was an error of law. My argument today is that in principle - - -

CALLINAN J: You are not correct when you say that its provenance was not proved. If the jury accepted Mr Bolger’s evidence, it was proved. It was proved as a letter that was drafted on his behalf by you on his instructions. The jury could or could not have accepted that. If they did accept it, then the provenance was proved.

MR MULLALLY: The Court of Criminal Appeal found otherwise.

CALLINAN J: I know the Court of Criminal Appeal did.

MR MULLALLY: That is what brought me here. I would not have come here if they had have found the way that you are saying. I am saying that once that was found – and I urge upon you that it was a correct finding – that for the purposes of an application for special leave, if there is an error of law with respect to a material piece of evidence – and I think I can say, with respect, if you are supporting that that it was material, supports what I have said all along and counsel said at the trial - - -

HAYNE J: Then the hurdle that you have to surmount is provided by paragraph 45 of the reasons of the Court of Criminal Appeal, where at paragraph 45 it is said that:

the Crown case against the appellant was overwhelming - quite apart from any considerations stemming from the disputed letter –

The court has considered it without regard to the reception of the evidence which is disputed. What is wrong as a matter of principle with what they have done? Why should we conclude that they were wrong in that?

MR MULLALLY: Because, sir – there are two reasons that I submit they were wrong in that. Firstly, the court has not given consideration to the impact of the evidence contained in P8, no consideration as to what it might have done to the jury. Secondly, notwithstanding that, there is still not a finding that the decision of the jury was, although overwhelming, that is a very, very strong case, it is still not a finding that it was inevitable or necessarily the result of what was before the jury. That is what I submit, with respect. The principle is as enunciated by this Court in Doggett. They are my submissions, your Honours, thank you.

HAYNE J: Thank you. We need not trouble you, Mr Cock.

If, as the Court of Criminal Appeal concluded, inadmissible evidence was received at the applicant’s trial, there is no reason to doubt the conclusion of the Court of Criminal Appeal that the reception of that evidence did not deprive the applicant of any real chance of acquittal. We, therefore, need express no view about the question of admissibility.

Special leave to appeal is refused.

AT 12.08 PM THE MATTER WAS CONCLUDED