Sheehy v The Queen [2004] HCATrans 448 (12 November 2004)

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Sheehy v The Queen [2004] HCATrans 448 (12 November 2004)

Last Updated: 26 November 2004

[2004] HCATrans 448

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B84 of 2003

B e t w e e n -

DARREN LEE SHEEHY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 1.40 PM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC: If the Court pleases, I appear for the applicant with MR P.E. SMITH. (instructed by Aylward Game)

MR M.J. COPLEY: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

HAYNE J: Yes, Mr Fleming.

MR FLEMING: Thank you, your Honour. An indictment was presented against the applicant in this case on 29 August 2001 in Maryborough. The indictment charged the applicant with two counts of murder which occurred on 20 July 2000. On 22 July 2000 a search warrant was executed at his house and he spent the balance of that day from about 5 am or so in the company of the police, whether it was custody of the police was an issue at the trial, but certainly in the company of the police, and he confessed to the murders at about 9.30 pm on the same day.

The matter initially came on for hearing under section 592A of the Criminal Code (Qld) in respect of some preliminary issues, including the voluntariness of the admissions. Section 592 makes provision for, after the presentment of an indictment, an application to be made or a judge of his or her own motion to bring the matter on for preliminary rulings and that was done. The hearing was initially before Justice Philippides who found that the confession was voluntary and was admissible at trial.

That was in November 2001. In February 2002 the trial came on before Justice Fryberg but it resulted in a hung jury. The jury was discharged and the trial was adjourned. It was relisted before Justice Mullins in September 2002 and it was argued, initially, that the question of the voluntariness of the admission should be reopened under section 592A.

HAYNE J: .....precisely was it an application under 592A(3) for leave to reopen the ruling earlier given?

MR FLEMING: Yes it was, your Honour.

HAYNE J: Yes.

MR FLEMING: That required special reason to be shown on the part of the applicant. However, we will come back to that because we say that that was one of the errors which crept in.

HAYNE J: But was any other application made other than an application under 592A(3) for leave to reopen?

MR FLEMING: An application was made. Everybody seemed to have characterised it as being under 592A(3). I cannot argue against what your Honour has just said. Justice Mullins ruled not that she was bound by the previous decision but rather there was no special circumstance. By then, of course, the evidence had been called in the first trial and had been tested upon cross-examination. Her Honour had regard to some of that evidence but nevertheless found, ultimately, that there was no special circumstance.

Your Honours, we must make some important concessions. The first is that the applicant did not call evidence or give evidence on the initial voir dire, or perhaps more correctly under section 592A, the application. Second, the applicant did give evidence in both trials. He was subsequently convicted of two counts of murder. Third, it was not suggested at the request to reopen the hearing in respect of the voluntariness of the confession that the initial ruling was wrong. That was not said.

Next, we concede that a trial judge has a continuing obligation to monitor facts which might go to the voluntariness of the confession even during the trial. Our learned friends refer to MacPherson and, obviously, we are bound by that authority. A very important concession that we have to make, your Honours, is that apart from the confession there was circumstantial evidence upon which, if accepted, a jury might convict. His Honour Mr Justice Williams pointed that out in the Court of Appeal decision.

Finally, we have to concede that there was no lack of opportunity to raise issues going to the voluntariness of the confession either upon the initial application of the reopening of that application nor upon the trial. The only thing that we have then, your Honours, is that under section 592A, because the trial, the second trial, was a hearing de novo there ought to have been a full hearing in respect of the confession as to its voluntariness. It was not a matter which flowed from subsection (3) at all, but rather, it was a reopening.

HAYNE J: Why was it anything more than the adjourned proceeding to be conducted before a jury differently empanelled?

MR FLEMING: Because, your Honours, the interlocutory decision finds its force, ultimately, in a verdict and there was no verdict here so the interlocutory decision has no ultimate force either. Your Honours, can I expand on that? Rogers, of course, in the High Court was the case which dealt with the question of issue estoppel or res judicata in respect of criminal matters and it was held that there was not a res judicata but there were other bases upon which matters can be excluded that have already been determined.

However, this is not a Rogers case because in Rogers the original conviction stood. The Crown attempted to use a confession excluded from the first trial in a second trial of further charges and it was found that that was oppressive and vexatious and that could not happen.

HAYNE J: Understanding that that is what happened there, what is the effect of the words in 592A(3):

A direction or ruling is binding unless –

certain things are shown? Binding on whom?

MR FLEMING: Binding upon the trial judge who is hearing the trial, initially, because - - -

HAYNE J: What statutory warrant is there for the addition of the rather important qualification you made, namely, initially?

MR FLEMING: Because it says binding upon the trial judge and that means the trial judge who is hearing the matter.

HAYNE J: Yes.

MR FLEMING: It had been heard. It resulted in a hung jury and the discharge of the jury and the new trial.

CALLINAN J: Mr Fleming, the opening words of the section might tend to suggest that the jurisdiction to make a binding ruling is available, exercisable at any time after an indictment and, by parity of reasoning, in respect of the indictment and until that indictment is discharged or the subject of a nolle, discharged by conviction or acquittal, then that jurisdiction remains, no matter how many aborted or miscarried or unsuccessful trials there are.

MR FLEMING: Your Honour, it seems clear that it is the presentation of the indictment which certainly raises the jurisdiction and the indictment was presented here some considerable time before trial.

CALLINAN J: There was only one indictment, was there not? There was not a fresh indictment for the second trial?

MR FLEMING: No.

HAYNE J: And were it not, as Justice Callinan suggests, what would the position be when the trial judge empanels the jury, they get an hour or so into the opening and then for some good and sufficient pressing reason the jury is discharged and a new jury is empanelled and away you go again, a common enough event. Do you say the ruling would not continue to bind?

MR FLEMING: Yes, we have to say that, your Honour.

HAYNE J: That is a touch awkward, is it not?

MR FLEMING: It would be if your Honour had not pronounced something in R v Edwards in Victoria when your Honour was in that court. We must go back and rely upon the law generally to see how to interpret 592A. Can I turn your Honours’ attention to R v Edwards [1998] 2 VR 354. The facts in that case were the reverse, effectively, of Rogers. Evidence of possession of a pistol and a sum of money was excluded at the first trial. The first trial ended in a conviction that was quashed and the second trial admitted the evidence which had been excluded in the first trial. Justice Batt at page 356, having referred to your Honour Justice Hayne’s reasons, said at about line 25:

I wish only to add some comments in relation to that ground. First, in my view, the ratio of the two majority judgments in Rogers v R . . . is that re-litigation in subsequent criminal proceedings of an issue of fact or law already finally or conclusively decided in earlier criminal proceedings is an abuse of process and therefore impermissible.

Just pausing there, that, of course, would be against us if that is as far as it went:

That is, the ratio is confined to “final” or “conclusive” decisions of issues . . . The statement at the latter page that the determination “becomes final once a verdict is returned and it remains final unless the verdict is quashed or set aside” is directly applicable and its corollary is that when, as happened here on 20 December 1995, the verdict (or, more accurately, the conviction reflecting the verdict) was quashed by the Court of Appeal, the decision of Judge McInerney ceased to be final or conclusive. Indeed, in my view, the whole trial slate was wiped clean. In my view, the quoted passage was essential to the reasoning of Deane and Gaudron JJ and the reasoning of Mason CJ is consistent with it and probably involves it, for it is a general principle that an interlocutory ruling depends for its inclusiveness upon the entry and subsistence of judgment –

Your Honour, we say that section 592 must be interpreted in the context of the general law and it is that if there is an inconclusive trial all of the interlocutory decisions fall as well and the matter must be commenced afresh.

Your Honour, they are our general submissions in respect of the matter. If it is necessary to go to the facts we say that in this case there is sufficient concern about the manner in which the confession came about to be an instrument by which this appeal can be carried forward. Thank you, your Honours. They are our submissions.

HAYNE J: Yes, thank you, Mr Fleming. Mr Copley, we need not trouble you.

On the adjourned trial of the applicant before a second jury, the trial judge determined whether there was special reason to reconsider a ruling given under section 592A of the Criminal Code (Qld) before the applicant’s trial before the first jury had commenced. The question concerning the operation of section 592A which the applicant now seeks special leave to agitate in this Court was not raised and was not determined at first instance. It is therefore not open to the applicant to argue that there was a wrong decision at trial of the question of law he seeks to agitate in this Court. We are not persuaded that it is arguable that there has been any miscarriage of justice in the matter. Special leave is therefore refused.

AT 1.56 PM THE MATTER WAS CONCLUDED