Hart v The Queen [2006] HCATrans 345 (21 June 2006)

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Hart v The Queen [2006] HCATrans 345 (21 June 2006)

Last Updated: 19 July 2006

[2006] HCATrans 345

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B10 of 2006

B e t w e e n -

STEVEN IRVINE HART

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2006, AT 3.44 PM

Copyright in the High Court of Australia

MR P.J. DAVIS, SC: I appear with my learned friend, MS E.S. WILSON, for the applicant. (instructed by Ryan & Bosscher)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR A.J. MacSPORRAN, SC, for the respondent. (instructed by Director of Public Prosecutions (Commonwealth))

KIRBY J: Yes, Mr Davis.

MR DAVIS: The first matter we wish to address is in relation to the application of the proviso.

KIRBY J: Yes, we know a lot about the proviso. We have had a lot of cases on the proviso lately. One is coming down tomorrow and another is in the wings.

MR DAVIS: Yes, I know there is one being handed down tomorrow and I like to think I am up to date, but I will not be able to make submissions in relation to that one.

KIRBY J: Well, we cannot expect you to know what is happening tomorrow; even we cannot expect that of you.

MR DAVIS: Yes, your Honour. Your Honour, the position here was that the trial judge directed the jury in relation to evidence that could be regarded as corroborative of an indemnified witness, a person Stevens. The directions were, in effect, that the jury could evaluate the evidence of the accused and then if they considered that that evidence was weak or unsatisfactory that fact, that unsatisfactoriness, could be used to corroborate the evidence of the indemnified witness, Stevens.

Now, it was conceded in the Court of Appeal that that direction was wrong and that is why obviously the Court of Appeal applied the proviso. It was dealt with in the Court of Appeal on this basis, that it was said that in effect the judge was inviting the jury to consider lies told by the accused in court without giving an Edwards direction. So it was on that basis that it was conceded by the Crown in the Court of Appeal that the direction was wrong. We submit that the misdirection is much more serious than that. We submit that effectively the judge has reversed the onus, because what the judge was inviting the jury to do was to look at the evidence of the accused and by evaluating that first he was effectively casting upon the accused an obligation to explain the Crown case.

If the Crown case was then not explained satisfactorily – and that is probably not in context a satisfactory word, but that was what was used – if the Crown case was not then explained satisfactorily, the jury could then take the unsatisfactoriness as a positive brick or stone to help build the Crown case. We submit that such a misdirection is a denial of a fundamental element of a fair trial, such that the proviso has no operation or, if it has operation, then it operates differently to the approach taken by the Court of Appeal.

KIRBY J: This is similar to the argument that was put up in Nudd and it did not succeed in Nudd, which on one view was a much more serious departure from the requirement of the trial that a defence should be properly put to the jury.

MR DAVIS: Well, we submit that the most fundamental tenet of a fair trial is the onus and standard of proof.

HAYNE J: Be it so, what is the verbal footing within the proviso or the section that you have for the argument you advance? How do you wrestle with the words to arrive at the conclusion that you advance?

MR DAVIS: That there must be a miscarriage of justice.

HAYNE J: By hypothesis, that is one of the three grounds of appeal, and you only get to the proviso if there is wrong decision on a question of law, wrongful admission of evidence or on any other ground a miscarriage, so by hypothesis there is a miscarriage.

MR DAVIS: Yes.

HAYNE J: What steps do you take verbally with the provision that gets to the result you advance?

MR DAVIS: We say that because of the misdirection there has been an error in the process which is so fundamental that there has not been a fair trial, and we rely on the statements made along those lines in Weiss and also in Wilde.

HAYNE J: Well, Weiss I think reserved the question.

MR DAVIS: Yes.

HAYNE J: Wilde is the principal authority in the Court in which these statements are to be found.

MR DAVIS: Well, Weiss was decided on other grounds. It was decided on a weighing up of the evidence and a determination of whether or not the intermediate Court of Appeal could have been satisfied itself beyond reasonable doubt. Now, that is what the Court of Appeal did here.

HAYNE J: Yes.

MR DAVIS: All three members of the Court of Appeal did that. Two members of the Court of Appeal turned their attention to the question that was left open in Weiss, which was whether there had been a procedural unfairness. Both the President and Justice Atkinson without giving reasons simply stated that there had been no procedural unfairness.

KIRBY J: No, but her Honour said that in accordance with Weiss she had given her own independent assessment - - -

MR DAVIS: Of the evidence.

KIRBY J: - - - to the entirety of the evidence, which is what Weiss says is the duty of the appellate court.

MR DAVIS: Yes, but that is, with respect, the other limb of the argument in that the independent assessment is what actually occurred in Weiss. What was left open in Weiss was the argument about the procedural - - -

KIRBY J: Yes, we know it is left open, and it was then argued in Nudd and it has been argued in two other cases which are pending, so we are quite familiar with this area of territory. Can you cite a case where this so-called fundamental failure of the trial has succeeded?

MR DAVIS: No, it has been - - -

KIRBY J: Justice McHugh often referred to it - - -

MR DAVIS: It is has been referred to in - - -

KIRBY J: - - - and I teetered on the brink in Nudd, but it has not been crowned with many successes.

MR DAVIS: Your Honour also mentioned it in Conway.

KIRBY J: Yes, Conway was not a successful argument either.

MR DAVIS: No, it was not successful there either. I would like to think R v Hart is going to be the case that is going to decide the issue, but I could not find one where it had been successful.

KIRBY J: The proviso is in very common form throughout the Commonwealth of Nations. It came in the early part of the 20th century. Are you aware of any other cases in other jurisdictions which are analogous to this case?

MR DAVIS: No, I could not find one. I could not find a case where – it has certainly been spoken of. It has been spoken of in this Court on a number of occasions but - - -

KIRBY J: Anyway, I think we understand your first argument. Your first argument is this is a case where the failure to give an Edwards type full direction meant that effectively the onus of proof was – burden of proof were shifted to your client, that that is so fundamental to the nature of a fair trial that your client did not get a fair trial and therefore that it did not occasion the application of a proviso and therefore that the Court of Appeal were wrong.

MR DAVIS: That is so.

KIRBY J: That is it?

MR DAVIS: They effectively applied the wrong test, I say, yes.

KIRBY J: Right. What is your next point?

MR DAVIS: The next question is the question raised in relation only to the convictions on counts 1 to 9. They related to offences of defrauding the Commonwealth and the background was that the applicant submitted tax returns which the Crown said were false in that deductions were claimed which were not valid. That turned on this question, as to whether or not the taxpayers were definitively committed to pay moneys to an employee trust and they must have been definitively committed prior to 30 June 1990 in order to obtain the deduction.

Now, my submission is that when one looks at what was actually found by Justice Jerrard or held by Justice Jerrard in the Court of Appeal, his Honour has in effect found or held a definitive commitment. Can I take the Court to the judgment.

KIRBY J: Yes.

MR DAVIS: It is at page 192 of the appeal book.

HAYNE J: There is a definitive commitment though it is subject to finance. That is the argument, is it not?

MR DAVIS: Yes, and when one looks at - - -

HAYNE J: So I am definitively committed to an expenditure of $10 million if I have made a contract with you that I will expend $10 million for a business or other deductible purpose, subject to Commonwealth Bank lending me $10 million?

MR DAVIS: Yes, and if that is - - -

HAYNE J: The notion of that bank or other banks lending me $10 million is pleasing, but unlikely.

MR DAVIS: Well, your Honour, the notion of $10 million, for instance, or the example given, tends to suggest a sham. Now, that is not the case that was run.

HAYNE J: But the proposition you advance is absolute, is it not? Here there was a definitive commitment, though it was subject to finance and subject to finance in circumstances where Chase AMP had gone away. True?

MR DAVIS: That is true. But there is no reason, in my submission, why the taxpayer could not enter into an agreement, a binding agreement, prior to 30 June. There is no reason why he could not do that, subject to obtaining finance after 30 June. That, in my submission, is effectively what Justice Jerrard has found at page 192. His Honour said:

I am prepared to accept that they were each also committed, by the agreements between the respective company and the employee director, to apply for a loan from the Chase AMP, and were under a legal obligation to their employee directors to make that application and take the steps necessary –

et cetera. Now, once his Honour gets to that point, in my submission, that is a binding agreement. It is a binding obligation. It may be defeasible.

HAYNE J: But is there a binding obligation to make a payment?

MR DAVIS: Yes, because - - -

HAYNE J: That is, has an outgoing been incurred? Has an outgoing come home?

MR DAVIS: An outgoing has been - - -

HAYNE J: Until finance is approved?

MR DAVIS: An outgoing has not come home, but an outgoing has been incurred because there is an obligation, as his Honour found, to apply for the finance and then apply that to the benefit of the trust. I have outlined the particular authorities on definitive commitment in the outline.

KIRBY J: Yes, we have read that.

MR DAVIS: The third point is in relation to the misappropriation. The point in relation to that is just simply that there was no evidence as at the time of the payments which are said to constitute the misappropriation that the payments were contrary to the trust deeds. In relation to that, the outline probably speaks for itself. Thank you.

KIRBY J: We will adjourn briefly to consider the course we will take and whether we will be calling on the respondent in this.

AT 3.59 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.00 PM:

KIRBY J: The Court does not need the assistance of the respondent.

The Court of Appeal of Queensland accepted the applicant’s complaint that an error of law had occurred in the directions given to the jury at the applicant’s trial for offences of defrauding the Commonwealth contrary to section 29D of the Crimes Act 1914 (Cth) and of dishonestly obtaining money contrary to section 408C(1)(b) of the Criminal Code 1889 (Qld).

The error involved the use of what could be made of lies which the jury found to have been told by the applicant as supporting evidence of an indemnified prosecution witness. The Court of Appeal found that the decision of this Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 required proper directions on the use of any such lies and that, by that standard, the directions at trial were inadequate. There was no challenge to that conclusion in this Court. However, the applicant contests the decision of the Court of Appeal upholding the conviction by the application of the proviso to section 668E(1) of the Code.

By reference to what this Court said in Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444 and other cases, the applicant argues that the error went to the heart of the conduct of his trial and effectively reversed the onus of proof of his guilt. The case involves no new point. The Court has had many occasions to examine the ‘proviso’. We are not convinced that error has been shown in the decision and order of the Court of Appeal in this respect. Nor are we convinced that it occasioned a miscarriage of justice in this case.

The other grounds of the application concern the accuracy of the trial judge’s directions on the constituents of the subject offences subject to counts 1 to 9 upon which the applicant was convicted and the sufficiency of the evidence to sustain those convictions. We see no error of the Court of Appeal in that regard or in respect of the issue of misappropriation. Nor do we see any prospect that an appeal would succeed in reversing the orders of that court.

Special leave is accordingly refused.

AT 4.03 PM THE MATTER WAS CONCLUDED