Thomas v The Queen & Anor [2008] HCATrans 273 (1 August 2008)

Last Updated: 11 August 2008

[2008] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M46 of 2008

B e t w e e n -

JOSEPH TERRENCE THOMAS

Applicant

and

THE QUEEN

First Respondent

DIRECTOR-GENERAL OF SECURITY

Second Respondent

Office of the Registry
Melbourne No M48 of 2008

B e t w e e n -

JOSEPH TERRENCE THOMAS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 1 AUGUST 2008, AT 9.33 AM

Copyright in the High Court of Australia

__________________

MR J.H. KENNAN, SC: May it please the Court, I appear with my learned friend, MR M.J. CROUCHER, for the applicant in each application. (instructed by James Dowsley & Associates)

MR N.T. ROBINSON, SC: May it please the Court, I appear with my learned friend, MR M.J. GIBSON, for the first respondent in M46 and for the respondent in M48. (instructed by Director of Public Prosecutions (Cth))

MR H.C. BURMESTER, QC: If it please the Court, I appear with my learned friend, MR S.P. DONAGHUE, for the second respondent in M46. (instructed by Australian Government Solicitor – Melbourne)

GLEESON CJ: Is it convenient to hear these two matters together?

MR KENNAN: Yes, your Honour.

GLEESON CJ: Yes, Mr Kennan.

MR KENNAN: Your Honour, if I could deal with the argument in No 46, that is the application for special leave to appeal in Thomas (No 4), there is the issue that has been raised virtually as a threshold issue, your Honour, as to whether or not the Court of Appeal had jurisdiction to entertain an application to reopen its order for a retrial that it had given in Thomas (No 3).

GLEESON CJ: You will have you looked at the decision of Burrell?

MR KENNAN: Yes, this morning, your Honour. Your Honour, we appreciate that Burrell has affirmed Grierson and the later cases, such as Elliott and Blessington, which stand for the proposition that orders disposing of an appeal against conviction and sentence are final orders and cannot be then reopened. But the distinction we would seek to draw in this case, your Honour, is that it was an order for a retrial and that that is an interlocutory order.

We refer in our written submissions to what Justice Windeyer said in Hall v The Incorporated Nominated Defendant that an order for – and that was in relation to a civil proceeding, but we say there is no reason for a distinction to be made - retrial in a civil proceeding was clearly interlocutory, an order refusing a retrial being a final order, but not an order granting a retrial. We say that an interlocutory order is always subject to a subsequent application, subject only to the rules relating to abuse of process and that is how the argument was eventually put on this point in the Court of Appeal and simply accepted by the Court of Appeal and not objected to at the hearing on that point by the Crown.

In relation to the substantial grounds relating to No 4, your Honour, the critical question that was raised was whether this was fresh evidence and whether the court in granting its order for retrial had been effectively acting on a misunderstanding as to whether or not the evidence was fresh evidence. What the subsequent material that was the subject of discovery in the pre-trial proceedings of the pending criminal trial showed, in our submission, was that this was material that, in the terms of the words used in Thomas (No 3) by the Court of Appeal, was known or knowable – and we particularly rely on “knowable” rather than “known” – to the Crown at the time of the trial.

Our subsequent arguments in relation to this application are to be understood in terms of the examination of whether or not this was fresh evidence. The evidence, of course, relied on by the Crown in the retrial was the substance of the interviews given by the applicant to the journalist, Ms Sally Neighbour, part of which were played in an edited fashion on the Four Corners program some day or two after the court made its orders quashing the conviction, that is, in Thomas (No 2).

We say, your Honour, that ASIO were aware of the fact of the interviews and had been aware that these interviews had been carried on more or less since April 2005 onwards. There was evidence on discovery that the surveillance telephone calls were intercepted and the 20 or more conversations between Mr Thomas and Ms Neighbour concerning arrangements for the interviews and other discussions about seeing, for instance, the recorded product before it was shown to air and that sort of thing, they were detected by ASIO and indeed the discovered materials showed that ASIO knew that what was being discussed was an interview between the ABC Four Corners program and the applicant.

GLEESON CJ: Were those discussions being made with the participation of the lawyers for your client?

MR KENNAN: Well, there was some evidence, your Honour, that there had been some co-ordination or liaison initially between the lawyers for my client and the ABC, but then the series of phone calls that then flowed were directly from the ABC journalist to my client, either to his mobile telephone or his landline. Now, your Honour, we say that – and this goes to the - - -

HAYNE J: Does the proposition have to go from “It was known that there was to be an interview” to the next step of saying, “and it could be anticipated that in that interview incriminating statements, or statements which later would be said to be incriminating, would be made”?

MR KENNAN: Or that there were matters that might relate to the pending – because at that stage he was bailed between committal and trial – there were matters worthy of further investigation by the police in relation to that, because the charges that he was facing basically related to what he did when he was overseas in Afghanistan and Pakistan; who he met there, what he intended to do on return, because one of the charges of which he was acquitted was based on the proposition that he was going to be a sleeper for Al-Qaeda on his return to Australia; and how he funded his travel home, receipt of moneys and airfare.

We say that if it was known that he was conducting an interview or interviews to be shown on a national public affairs television program, it would reasonably be expected, having regard to the publicity surrounding him at the time, that those interviews by the journalist would canvass why he went overseas, what he did there, who he met there, how he intended to get back and what he intended to do, or what he was going to do on his return to Australia. It would be difficult to conceive that if he was being interviewed on a current affairs program that those topics were not going to be the topics that would be canvassed.

We say they are the very subject matter that was involved in the charges and, that being so, it would have been reasonable for – it at least raises the proposition that the AFP could have been advised that he was giving these interviews and then made further inquiries of the ABC and Ms Neighbour if necessary, subpoena Ms Neighbour on a pre-trial proceeding, and then the contents of the interviews themselves would have been covered.

Indeed later, before the trial but in early 2006, as the Court of Appeal indicated, ASIO became aware that the applicant had indeed been speaking to Ms Neighbour about a person of security interest who had also been the topic of the interviews that were held in Pakistan, so that these were matters that were, we say, of a very direct significance and those were matters that were then knowable because, in effect, once the fact that the interviews had been carried out, all that the AFP had to do was to make further inquiries to then become aware - - -

HAYNE J: There is the intermediate step that ASIO could lawfully have communicated its knowledge to AFP.

MR KENNAN: Yes, your Honour. We say two things about that.

HAYNE J: The Court of Appeal held no, did they not?

MR KENNAN: They did, your Honour. We put the case on the basis, your Honour, that there was a working relationship between ASIO and the AFP in this particular matter, the Thomas matter, that meant that for purposes of applying the test as to what the knowledge of the Crown was, their knowledge should be imputed to the AFP in the same way as the English case of Blackledge held that the Department of Trade and Industry, I think the Department of Foreign Affairs and Security Services and I think there was one other department, were for purposes of the rules of discovery, “one indivisible entity” was the phrase.

HAYNE J: The Court of Appeal’s answer to that, be it right, be it wrong, was that that question is decided by the ASIO Act?

MR KENNAN: They said that, your Honour.

HAYNE J: Now, is that wrong or, if it is, why is it wrong?

MR KENNAN: Yes, we say that is wrong because, your Honour, section 18(3) talks about knowledge of:

information relates, or appears to relate, to the commission, or intended commission, of an indictable offence –

We say when properly examined, that is quite a low test. That is “appears to relate to” is short of containing admissions of the commission of a criminal offence. The reason probably for the legislation being in that way in what it says is, if they have knowledge that appears to relate to, they are then permitted to communicate that information to the police so the police can then make further inquiries. It may be that the information itself might be evidence or it might be that, as in this case, there is sufficient basis for further inquiries to be made. We say that that is a sensible interpretation of the provision because - - -

GLEESON CJ: Your proposition is that they could lawfully have communicated this?

MR KENNAN: Yes.

GLEESON CJ: Is it your proposition that they could lawfully have decided not to communicate it?

MR KENNAN: We do not need to go to that step, your Honour, because we say that in terms of knowability, all the AFP had to do was ask and we say that because of the working relationship between ASIO and the AFP in this case, which goes back to Pakistan, there were six joint interviews between the applicant, on the one hand, and the AFP and ASIO on the other hand, representatives of each agency attending. The seventh interview was conducted by the AFP to try and put what had been said in the earlier six interviews into a form that might be admitted.

GLEESON CJ: It is common ground, is it not, that ASIO did not in fact communicate this to the police?

MR KENNAN: Yes, there is no evidence of it, your Honour.

GLEESON CJ: It is not your suggestion that they were acting unlawfully in failing to communicate it to the police?

MR KENNAN: No, your Honour, but what we do say is that the working relationship was such that ASIO had previously provided the AFP with information, for instance, in relation to the whereabouts of other persons who the AFP might want to interview in the investigation, and that is - - -

GLEESON CJ: I am just wondering where it leaves your proposition of the indivisibility of ASIO and the AFP if you accept that ASIO could and did lawfully decide not to communicate this to the police.

MR KENNAN: There may have been no conscious decision. That is one of the matters that we would have liked to have explored in cross-examination of the deponents of the ASIO affidavits. At the Court of Appeal, ASIO put in a number of affidavits, some of which were secret. We asked at a preliminary hearing in the Court of Appeal to cross-examine. That request was denied. In written submissions subsequently we said that it was our position that the Court of Appeal could not rely on the contents of those affidavits against us untested by cross-examination.

Now, there were a considerable number of issues that we would have wanted to pursue in relation to the deponents of those affidavits as to, for instance, the number of officers – it seems that there were a considerable number of officers who did know of those conversations – at what level within ASIO that information was communicated, was there discussion in ASIO by the officers who knew this about what to do with the information? Was there discussion that it might relate? Was there any discussion about handing it over to the AFP? Did they receive any requests from the AFP and all of those sorts of matters would have been legitimate areas of cross-examination that were central to our case.

But the Court of Appeal relied on the affidavits against us partly for the proposition that ASIO was not a law enforcement authority, that it carried out, I think the Court of Appeal described, a parallel function to the AFP, and that therefore it could not be said that they were in any shape or form concerned with the proposition that would attract the analogous principles that are set out in Blackledge and other cases relating to disclosure, for instance, cases where the knowledge of a forensic scientist retained by the prosecution is considered to be, for purposes of disclosing documents, part of the prosecution although it may not formally be part of the prosecution. We say that we were denied natural justice and a fair hearing by the Court of Appeal because of that failure.

We also say that there was error by the Court of Appeal in saying, as they did, that the conversation between the journalist and the applicant was a perfectly lawful conversation. We say, with respect, that is not the test for purposes of whether or not the material could be handed over. One can have a perfectly lawful conversation between two parties, the conversation itself might be lawful, but it still might relate to the commission of a criminal offence.

The Court of Appeal also said that it would be effectively a breach of the civil rights of the privacy and freedom of speech for ASIO to have communicated this information to the AFP. We say that is an egregious error. We say that that is not the test. The test is simply to be looked at as what was known or knowable to the prosecution about the evidence that they said was fresh. That is what we say it comes down to.

We say it was knowable to the prosecution because all the AFP – and there was evidence that the AFP continued to talk to ASIO throughout 2005, during all this period there was still communication. Indeed, affidavits were prepared for the purpose of the voir dire with liaison between AFP and ASIO by ASIO officers for use in the voir dire
proceedings. All the AFP had to ask ASIO - no doubt occurring to the AFP, as it occurred to us, that these matters would have been the subject of interception – did they know anything?

Were there any further tips they could give them or any further investigations that they might make because there was also evidence that they were still looking for further material to gather during 2005, including communications between the AFP, Australia and Pakistan about this matter. They were still gathering information for the prosecution. All they had to do was ask ASIO and even if ASIO had just said it might prove fruitful for you to go and talk to the ABC, because we believe there is some taped interviews in existence, and therefore the material that they rely on as fresh evidence was knowable and not fresh. I think that completes the matter.

GLEESON CJ: Mr Kennan, has the retrial of your client begun?

MR KENNAN: Yes, your Honour. There have been pre-trial proceedings. My client has been arraigned, but the jury has not been empanelled.

HAYNE J: At the arraignment he entered a plea of not guilty.

MR KENNAN: That is so, your Honour.

HAYNE J: You accept that that marks the commencement of his retrial?

MR KENNAN: Yes, I cannot contest that, your Honour. He has put himself on trial in terms of 391 of the Crimes Act, your Honour, but we say that that should not stand in our way.

GLEESON CJ: Thank you, Mr Kennan. Yes, Mr Robinson.

MR ROBINSON: If the Court pleases. Your Honour, we submit in respect to both matters that there are powerful reasons not to grant the application for special leave. The first is, as just acknowledged by our learned friend, Mr Kennan, that the trial has in fact commenced. The trial has commenced before her Honour on the entry of plea and, as we indicate in the written submissions, on the 28th, that is Monday of this week, her Honour, subject to whether or not a grant of special leave is given, would fix the trial in, as she described it, the immediate short term.

So a trial has commenced and, in our submission, the many occasions that this Court has expressed the reluctance to grant special leave where fragmentation would occur, ought apply in this case. In our submission, there is nothing exceptional about the consideration by the Court of Appeal decision in Thomas (No 3) in respect of the fresh evidence. What we submit is that the court there looked at the question of whether the evidence was fresh for the purpose of deciding whether it would be unfair within the rule in Fowler, on the first limb, to take it into account for the purpose of a retrial, on whether there was sufficient evidence cogent to support a conviction.

GLEESON CJ: It proceeded on the factual basis that appears from pages 154 and 155.

MR ROBINSON: That is so, your Honour. The complaint that Fowler has been unreasonably extended relates only to the consideration of whether the evidence by being fresh could be said to be wrongly supplementing the Crown cases run on the trial. It is submitted that no error has occurred or such concern as to error is not sufficient as to grant this being an exceptional case to interfere with what is otherwise the conduct of an extant trial. It is submitted that in fact if upon conclusion of the trial and if conviction follows, the rights of appeal the applicant would have would include challenging the approach by the Court of Appeal in Thomas (No 3) in directing a retrial.

In respect to the matters complained of in M48, your Honour, we do not seek to press it beyond the obvious concern that it being well out of time it is for my friends to demonstrate to the Court that there is some good basis for the grant of special leave. We submit that the combination of the length of time and the fact of fragmentation in combination are further reasons why the Court ought not grant special leave.

If I could deal with M46, the questions there. Your Honour, there are, we submit, again the question of fragmentation. There is also there the fact that what our friends complain of is the want of – sorry, I will go back a step. In our submission, the decision in Burrell makes clear there was no jurisdiction for the Court of Appeal. The Crown in fact did take the point of jurisdiction subject to the question of whether there had been fraud. The nature of the complaint made did not use that term, but did make complaint of a failure of various duties by both the director, his staff and counsel acting for the director.

The maintenance of the objection to jurisdiction was maintained through argument by the Crown. It is submitted that there was no jurisdiction by or available to the Court of Appeal in M46, Thomas (No 4), and that, with respect, the decision in Burrell, published yesterday, we would submit makes that clear.

The distinction our learned friends seek to make as to whether this is an interlocutory or other order, in our submission, does not apply. The decision to grant a retrial was one of the two choices the legislation permits to the Court of Appeal on dealing with the application. Having found there were good grounds to quash the conviction, the court is required by statute to either enter verdicts of acquittal or direct a retrial. In our submission, the nature of the decision the court is thereupon called is a decision on the merits of the purpose of the approach in Burrell and in Grierson and like cases and that there was, in our submission, no jurisdiction. As the court found on the facts, there was no suggestion that any fact put before the court on Thomas (No 3) was wrong or misstated. In that sense, even less than in Burrell, could it be said that jurisdiction could have been enlivened.

Finally, your Honour, in respect to reasons against the grant of special leave, we submit that the complaint made that the court below failed to give procedural fairness and therefore this Court ought grant leave, our friends do not deal with in written argument and my friend did not touch upon before this Court, what consequence is sought if special leave is granted in relation to M 46. In our submission, if leave were granted and the appeal succeeded, in the ordinary course of events if there had failed to be procedural fairness given, this Court would remit the matter back to the Court of Appeal for the purpose of providing procedural fairness. In our submission, that would lead to an even greater fragmentation than is the normal case. For those reasons, we submit that there is good reason not to grant special leave and that there are no exceptional circumstances.

If I can deal very briefly with the point that my learned friend raised as to the question of whether or not there had been unlawful activity by ASIO in not providing the information to the Australian Federal Police. In our submission, it must follow from the proposition that it was not unlawful, that in those circumstances it could not be imputed and it must follow, we submit, that it cannot have been within the terms of 18(3) that the information possessed by ASIO was such that it was within the terms of the legislation to give such information to the Australian Federal Police.

In our submission, my friend having referred to 18(3), the terms of the legislation could only permit, we would submit, release of such information by ASIO to Australian Federal Police if it were apparent that what was taking place were admissions, because the nature of the legislation in the way in which it is drafted could only catch events in the past if the conversation were as intercepted or known by ASIO, if it indicated the commission of an offence in the past, which could only be by way of admission.

On the facts as put before the Court of Appeal - and my friends of course had the onus in respect of that – it was not apparent, we would submit, and the Court of Appeal was right to find that there was nothing in the fact of the conversations which would have indicated a reasonable suspicion that the applicant was, in fact, admitting to a journalist
commission of the offences for which he was awaiting trial and in respect of which there was challenge to the record of interview conducted by the Australian Federal Police in Pakistan in March which constituted admissions of the events giving rise to the trial.

It is hardly to be supposed that in an interview which was, as my friend has indicated, and which was common, at least initially there was liaison between lawyers and solicitors acting for the applicant and the ABC, that such an interview would constitute admissions of the very offences which were the subject of challenge and the only evidence of which, as was apparent, was contained in an interview. It is submitted that nothing in the materials put before the Court of Appeal, and the Court of Appeal rightly found that there was no basis to perceive that there was knowledge within the terms of those conversations which ought be imputed, certainly, nor which could in terms of the legislation have been passed to Australian Federal Police.

Finally, your Honours, we rely of course on the submission we make in the written outline that even if knowledge of conversations had been passed across, there was no way in which the Australian Federal Police could have compelled the gathering of such information. As is apparent from the proceedings, no statements had been made by the journalist and they answer subpoenas only for the purpose of appearing on the retrial.

It is submitted accordingly, your Honour, that there is no apparent error or risk of such is so slight that there is no exception in the grounds actually put before the Court, but that for good reasons, in particular fragmentation in the want of jurisdiction, this Court ought not grant special leave.

GLEESON CJ: Thank you, Mr Robinson. Yes, Mr Burmester.

MR BURMESTER: Your Honour, as indicated in our written submissions, we rely on our written submissions and there is nothing in what my friend said this morning that I think calls for oral response. Unless there were questions from the Bench, in our submission, the applicant has not pointed to error in the reasons of the Court of Appeal either on the factual issues or the interpretation of the ASIO legislation. For those reasons, we submit special leave should be refused in M46.

GLEESON CJ: Yes, Mr Kennan.

MR KENNAN: Your Honour, I had misunderstood what your Honour had said about hearing the matters together and I had only addressed 46 in my earlier remarks. If I may briefly address 48 now?

GLEESON CJ: Yes, certainly.

MR KENNAN: Your Honour, in relation to 48, we say that the appeal against Thomas (No 3) is not an appeal from an interlocutory order made by this judge in the pending proceedings. What we are seeking to do is to challenge the order for the retrial. We are not seeking to challenge anything that this judge is doing in the pending proceedings. We say that distinguishes it from the other authorities which indicate a reluctance to interfere in pending proceedings by way of appeals against interlocutory orders.

Secondly, we say the importance of this point that is raised, your Honour, also make this an exceptional circumstance, because what happened here was that the Court of Appeal for the first time, as we understand it, either in Australia or in the United Kingdom, allowed the Crown to get a retrial on the basis of fresh evidence and that this decision in itself represents a significant enlargement of the circumstances in which the Crown can get a retrial.

In our submission, that is contrary to the law that was settled by a line of authorities, most notably Fowler. There is no precedent or questioning of the general proposition that the Crown does not get a retrial to supplement a defective case or to add evidence to bolster its case. That being so, it is a matter that stands out as deserving of the attention of the High Court.

HAYNE J: One of the difficulties, I think, that you may have to face in the second application is the sequence of events. The retrial had begun before this challenge or basis for challenging the order for retrial was first brought to light.

MR KENNAN: That is so, your Honour. What had happened was that the new trial commenced initially before Justice Gillard and it was then adjourned. There was then a change of counsel. Pre-trial proceedings then commenced before Justice Curtain.

HAYNE J: Well, 4 February your client is arraigned, and this point is first raised on 11 February, is it not?

MR KENNAN: That is so, your Honour.

HAYNE J: After the trial has begun.

MR KENNAN: That is so, your Honour. What had happened was that the pre-trial proceedings were directed towards establishing the proposition which, we say, as we say in the other application, appeared that the evidence was not fresh and that had that been demonstrated to the court’s satisfaction, we would not have needed to have troubled this Court on this application. But be that as it may, and the fact is, we say, that this is a question of great importance for the development and administration of the criminal law in Australia, that is, is there to be a fresh evidence exception to Fowler? We say that the errors in the judgment in Thomas (No 3) are that they said that the first stage of the test in Fowler, if it was read literally, would be the end of the matter, that is, that the court said:

If Fowler is read literally, the language of the first stage is applicable.

It went on to say, in glossing that proposition, that the court - Fowler had:

envisaged that such supplementation would involve utilising evidence which was available but which the prosecutor decided not to use and/or evidence which was capable of being obtained for the trial by the exercise of reasonable diligence but had not in fact been obtained.

That is, they said that the statement in Fowler, when they said that you cannot get a retrial to supplement a defective case, the judges then could not have had in their minds the possibility of supplementation by fresh evidence.

GLEESON CJ: Well, a practical example, and I think one that was involved in a special leave application that we had quite recently where I think the matter is awaiting hearing is this. What about a case in which the accused person in the course of sentencing proceedings makes an admission?

MR KENNAN: That raises effectively the same proposition, your Honour, that if there has been a trial and the conviction has been quashed because of the inadequacy of the evidence, however, we would say, the new evidence arises, whether by out of the accused’s mouth at some stage, by way of evidence of something he said before the trial or something that he says after the trial or pending appeal or during the appeal, that is still caught, we would say, with the first stage of Fowler because Fowler is devoted, we say, and underpinned by the proposition that there should be a finality in litigation. As Lord Diplock said in Reid, that we have referred to, to allow the Crown:

to make good the evidential deficiencies in its case-and, if a second chance, why not a third?

Where does it end? It is to be noted, for instance, in England, I think, where they have legislation in relation to double jeopardy to allow the Crown a second go, the legislation confines it to one more chance. But this test as put by the Court of Appeal allows potentially any number of chances. On the second trial if the conviction is then quashed because the evidence again proves to be defective or the new evidence proves to be defective and then further fresh evidence was then discovered - - -

GLEESON CJ: The case I have in mind is one in which the accused, after conviction and before sentencing, actually wrote a letter to the judge.

MR KENNAN: That, we would say, your Honour, would still be caught by Fowler, that is, that it is fresh evidence and one could envisage a number of situations. One could envisage a situation where a person has confessed in gaol or elsewhere pending trial and that evidence is not known to the Crown, no one comes forward about it, and later after the conviction is quashed by reason of inadequacy of evidence, not through some other error, that becomes known. Then on this test in Fowler it would be fresh evidence and there could be a retrial granted on that basis.

We say, however the confession arises or the fresh evidence arises, whether it be by in the case your Honour highlights or in some other form, then the principle of Fowler, we say, still stands, that the Crown elects to proceed, as they did in this particular case, on a record of interview that was clearly fraught with some risk in terms of its admissibility. The conviction is set aside because of the inadmissibility of the record of interview, and it is that record of interview that is critical to support the conviction, there being no other sufficient evidence to support the conviction.

Then to say, “Well, we now have fresh evidence,” is inconsistent with, we say, what was said in Fowler and what was said in Reid, which Fowler referred to , and a line of other cases, your Honour, that go to the question of finality in litigation because, we say, once there is a fresh evidence exception - and there might be more glaring examples or more examples where a court may be sympathetic to a particular form of fresh evidence coming in rather than another - but however it is framed, it opens up the possibility for continuing litigation, continuing trials over the same matter without the emphasis being given to finality in litigation.

Reid points to the decision in Burks v United States in the United States Supreme Court where they have held, I think on a number of occasions, that it would infringe the double jeopardy provision, I think it is, in the Fifth Amendment of the Constitution, for there to be a retrial on the basis of further evidence where the conviction has been quashed not because of some other error, but because of the insufficiency of evidence.

We say that this principle that there be no retrial on the basis of fresh evidence is consistent with the underlying principles, although double jeopardy is not directly involved here, that were referred to in Carroll about double jeopardy about the need for finality in litigation and the law’s aversion to putting someone on trial again for the same offence.

What this judgment does is it directly challenges the rule, we say, in Fowler. There is no need for the – we say it is in error, but the court said, “Well, Fowler should not be read literally, because if it is not read literally and this gloss is applied, well, it is a fresh evidence exception”. Then, we say, there is the scope for continuing litigation. We have also raised in our written submissions, if there is to be an exception for fresh evidence, which we say is an issue that should be determined by this Court as to whether or not that exception should enter for the first time into the Australian - - -

HAYNE J: Well, you cast it in terms of exception. Do you accept that the overriding principle in forming the statutory choice the Court of Appeal must make can be captured by the expression “the interests of justice”?

MR KENNAN: It does not appear as it did in Fowler in the legislation itself, your Honour, but I could not argue against, obviously, that being a factor guiding the discretion of the Court.

HAYNE J: You accept then, do you, that it is a discretionary judgment whether to order a new trial or direct entry of verdict of acquittal?

MR KENNAN: Yes, your Honour.

HAYNE J: And the discretion is to be exercised according to all of the available information and circumstances, is it not?

MR KENNAN: Except that Fowler did take that into account, your Honour.

HAYNE J: Yes. But you would have it, would you, that in a case where the person accused has, in sentencing proceedings or after sentencing proceedings, made an undeniable admission of guilt, that it would be in the interests of justice that notwithstanding that admission of guilt, there should be entry of verdict of acquittal because that admission of guilt was made after conclusion of the trial found to be defective on a ground identified in the criminal appeal statute?

MR KENNAN: That is so, your Honour, because the first test - - -

HAYNE J: I just want to understand the proposition you put and it is as bald as that.

MR KENNAN: I do, your Honour, and I say so, your Honour, because applying Fowler correctly, we say, the first stage of their test is that if the evidence that has been deemed to have been inadmissible, the remaining evidence then is not sufficient to support a conviction, you then do not give a second trial. The consideration ends there. We say that Fowler then applied. Indeed, it used the word “then” in the next sentence. The interests of justice test in saying whether or not the interests of justice supported a retrial, if there was sufficient evidence at the first trial indeed to support the conviction after some of it had been ruled inadmissible, but what it said is, “Where the first test is not satisfied, you do not get to the second stage and apply the interests of justice test.”

The other thing that we would want to say about this, and what the Court of Appeal have said, your Honour, is that the Court of Appeal, and accepting for the purposes of this argument that if there is to be fresh evidence taken into account or a fresh evidence exception, the question is what standard has to be reached by the Crown? The Court of Appeal said it was sufficient if the fresh evidence might support a conviction. We would question whether or not that is the right test, again having regard to what was said in Carroll about the imbalances between the prosecution and the defence, whether or not it should be a higher test than that.

The other aspect of the test they have posed is whether or not it is discoverable by reasonable diligence, which is the fresh evidence test that is equated to the defence test, whether or not that is the appropriate test again having regard to the imbalance between the Crown and the defence in terms of their capacity to find evidence. So we say that for all of those reasons, this is an important development in the criminal law and it is one that should be determined ultimately by this Court.

GLEESON CJ: Well, I am looking at page 155, line 18. There seems to have been agreement in the Court of Appeal as to the principle to be applied.

MR KENNAN: The point was conceded, your Honour, but we would say that despite that, your Honour, if the ultimate ruling on the law by the court is wrong, as we say it is, the concession made not contesting the foreshadowed approach of the court during arguments should not be a barrier to this Court dealing with the matter.

GLEESON CJ: Thank you, Mr Kennan. Now, Mr Robinson, I think if you want to say anything in relation to that - - -

MR ROBINSON: No, your Honour, not unless there is a question from the Bench.

GLEESON CJ: Thank you. We will adjourn for a short time.

AT 10.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.22 AM:

GLEESON CJ: On the accepted factual basis on which the Court of Appeal ordered a new trial, we think that the decision of the Court of Appeal was not attended with sufficient doubt to warrant a grant of special leave.

The material that is now advanced in contradiction of that accepted factual basis of the Court of Appeal’s decision to order a new trial is not such as would support reconsideration by this Court of that order. We would add that the fact that the applicant’s retrial has now begun is a further reason for not granting special leave.

In both of these matters the application is dismissed.

AT 10.22 AM THE MATTER WAS CONCLUDED