Kamm v The Queen [2008] HCATrans 241 (13 June 2008)

Last Updated: 25 June 2008

[2008] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S84 of 2008

B e t w e e n -

WILLIAM KAMM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 2.04 PM

Copyright in the High Court of Australia
MR G.D. WENDLER: If the Court please, I appear for the applicant. (instructed by Van Houten Law)

MR D.C. FREARSON, SC: May it please the Court, I appear for the respondent. (instructed by Solicitor for Director of Public Prosecutions (NSW))

HEYDON J: Yes, Mr Wendler.

MR WENDLER: Before I open the application, there is an issue of time. Will your Honours make an order extending time? It is not opposed, I understand.

HEYDON J: That will not be a problem if you make progress on the substance of the matter.

MR WENDLER: Yes, thank you. Your Honours, this application raises matters of importance to the administration of criminal justice generally and in the special circumstances of the applicant’s application. There are two matters that are embedded in the importance of this application. They can be identified immediately as what I describe as the indictment point and the jury irregularity point.

If I can move to handle the indictment point first, your Honours will know from the filed papers that almost at the conclusion of the defence case in the trial of the applicant it was discovered that one of the counts on the indictment was defective in the sense that the offence identified and pleaded was not in existence at the time it was alleged the offence was committed. The pleadings in respect of count 4 represented the modern version of the offence under section 66C, which there has very recently in the last couple of days been significant treatment by this Court as far as the history of that section is concerned and its evolution in the Crimes Act.

What occurred then was application was made purportedly pursuant to the provisions in the Criminal Procedure Act, especially within the ambit of sections 20 to 22, inclusive, to amend the indictment to regularise, as it were, the charge and that amendment was to do with the ambit of the age of the complainant. The question then arose whether that amendment was in the power set out between sections 20 and 22, inclusive, and indeed what the legal status of the trial was at the point when this defect was discovered.

The Court of Criminal Appeal, when handling this ground of appeal against conviction, effectively held that what occurred was within the authority of the relevant provisions of the Criminal Procedure Act and that in no way interfered with the conviction. What the Court of Criminal Appeal did not do is first analyse what the legal status of the trial was at the point where the defect had been discovered and it is my respectful submission at that point the trial was a nullity because the mode of procedure bringing the applicant to trial was flawed in a fundamental way; the offence upon which he was arraigned and brought to trial did not exist. Simply transmogrifying the offence did not cure the situation.

Assuming that sections 20 and 22 were properly activated, what occurred then was that the trial judge proceeded to arraign or rearraign the applicant within the terms of the new charge. It was an amendment in the nature of a substitution of a new charge, if that is the right expression. What is not in the application book but should have been in the application book perhaps are the – can I just hand this up – two pages of trial transcript which deal with the issue concerning the amendment and then the arraignment of the applicant, or rearraignment rather, of the applicant.

Your Honours will see that on 29 June 2005 the trial judge told the jury what the problem was in relation to the count 4 on the indictment and then the following page your Honours can see where his Honour proceeded to read out the fresh charge, take a plea from the applicant and proceed to move on with the trial.

The questions that arise from the procedure that was adopted at the trial, first, whether section 22 was properly engaged, there being no note of the order for amendment on the indictment. Your Honours will see on page 3 of the application book there is no note of the order for the amendment. Section 22 had to be engaged otherwise the subsequent act of rearraigning the applicant was not according to law. That is the first, as it were, procedural defect, and curiously not handled at all in the reasons for judgment by the Court of Criminal Appeal.

HEYDON J: Was it put to them?

MR WENDLER: I am sorry, your Honour?

HEYDON J: Was that defect raised with them?

MR WENDLER: I cannot quite tell from the papers. I have heard my friend say no – I will have to defer to him – that it was not raised, but, nevertheless, I raise it now, of course, because it is fundamental, the legality of the procedure that was adopted at the trial. The other aspect that arises from the procedural defect was whether or not there was a requirement, once the applicant had been rearraigned, to be put in charge of the jury, as is normally the case? There was no treatment at all, curiously, of the application of section 154 of the Criminal Procedure Act, which clearly mandates that once:

an accused person arraigned on an indictment pleads “not guilty”, the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly.

The legal relationship between section 154 and sections 20 to 22, inclusive, of the Criminal Procedure Act was simply not handled by the Court of Criminal Appeal and that, one would have thought, was absolutely fundamental in order to properly understand the legality of what occurred at the trial of the applicant. So it is my respectful submission, and this raises the point of general importance in the application, that there has been a significant and fundamental failure of criminal procedure as a result of which the jury were permitted to be exposed to a large body of evidence which was not properly before them and the process that was adopted by the trial court and the treatment of that process by the Court of Criminal Appeal raises significantly the question of whether the applicant, certainly in respect of count 4 of the indictment, has had a trial according to law.

The next aspect of this application is what I a moment ago described as a jury irregularity point. It is perhaps necessary to effectively handle this point by inviting your Honours to page 4 of the application book where the interlocutory judgment appears, the trial judge’s interlocutory judgment concerning the application to discharge the jury once the jury had received the note, the subject of the second limb of this application. Do your Honours have page 4?

HEYDON J: Yes.

MR WENDLER: If I can invite your Honours to line 20 which sets out the terms of the note the trial judge received from, one assumes, the foreperson. Before I read it out, I perhaps should sketch the background to how this aspect of the trial was handled by the trial judge. A defence witness had given evidence the day before, evidence which went directly to the reliability of the evidence on count 4 on the indictment, or the complainant’s evidence on count 4 of the indictment. This was important evidence and if the jury were to have embraced it as a reasonable possibility, the applicant would have had to have been acquitted in relation to certainly that count and, indeed, there would have been effectively a potential domino effect if the jury found that evidence unreliable that may have permeated other counts, so it was an important issue.

I think I have just mentioned that on the day before the trial judge received this note the jury had made an observation of a witness that followed the witness who had given evidence and then returned to court, and the observation can be seen in the jury’s note which I will now read. The terms of the note were as follows:

The jurors wish to advise the Court that a number of jurors observed a member from the public gallery coaching the witness while they were giving evidence ie mouthing the words then spoken by the witness.

The first observation I make about that is that the trial judge did not handle that immediately and that should have been handled, in my respectful submission, immediately the note had been given to the trial judge. It was already a day old. It was left really till the end of the day, the afternoon before the trial judge handled the terms of the note and gave the jury instructions concerning what they had allegedly had observed.

The first observation to make about the terms of the note is that the jurors identify “a number of jurors”, not the whole jury seeing it but a number of jurors. It is not the applicant’s case that jurors are not entitled to assess the demeanour of witnesses when they give their evidence. However, the question does arise, how far the jury is permitted to go to assess the reliability of a witness who has given evidence and then returned to court and behave in a particular way.

HEYDON J: If a plaintiff who claimed to be incapable of raising his right arm above the horizontal in the witness box was later on seen sitting in court stretching his arms above his head, that would be a legitimate observation to make as long as everyone was aware of the point.

MR WENDLER: There is no doubt about that. It is how you handle that information afterwards is the important issue. What must have happened, and it is a fair inference from this note, that because only some jurors had made this observation, they would have relayed that observation to others. Some two days went by. There may have been argy-bargy about that. It was done in the absence of any control by counsel, any control by the judge. It demonstrated actual bias in the terms of the note and potentially raised the question whether the trial at that point was a fair trial. The other aspect, of course, which was not engaged and there was no treatment by the Court of Criminal Appeal is whether or not section 67C of the Jury Act - - -

HEYDON J: Do you mean section 68C?

MR WENDLER: I beg your pardon, section 68C, whether that section had been engaged and whether there had been an inquiry within the terms of section 68C. Jurors are sworn to be indifferent to everything except the evidence and whether this activity came within the ambit of section 68C of the Jury Act - which of course was in operation at the time of this trial – the inquiry, of course, that they made was an inquiry of other jurors. Having made this observation, the inquiry would have then moved to an inquiry in relation to whether other jurors had seen it and what inferences they were
prepared to draw and, of course, this is simmering along for two days, so compounding the situation in the trial.

It is my respectful submission that his Honour should have certainly inquired as to whether section 68C had been engaged and, indeed, should have handled the jury note immediately it came to his Honour’s attention. I think I have just about come to the end of the matters I wish to agitate in the application. Yes, unless there is anything else, I rely on the written submissions.

HEYDON J: Thank you, Mr Wendler. We need not trouble you, Mr Frearson.

We are of the opinion that the application for special leave should be refused on the ground that the reasoning of the Court of Criminal Appeal stated by Justice Hodgson is correct.

An additional point was taken which was not taken before the Court of Criminal Appeal, namely, that no note of the order amending count 4 was endorsed on the indictment contrary to section 22(1) of the Criminal Procedure Act 1986 (NSW). That is not a ground for granting special leave in view of the lateness with which the point has been raised and its complete lack of materiality.

AT 2.20 PM THE MATTER WAS CONCLUDED