Kemp v The Queen [2009] HCATrans 154 (25 June 2009)

Last Updated: 6 July 2009

[2009] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B47 of 2008

B e t w e e n -

MICHAEL SHANE KEMP

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 2009, AT 10.42 AM

Copyright in the High Court of Australia

MR B.G. DEVEREAUX, SC: May it please the Court, I appear with my learned friend, MS K.A. MELLIFONT, for the applicant. (instructed by Legal Aid Queensland)

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

FRENCH CJ: Yes, Mr Devereaux.

MR DEVEREAUX: Your Honours, this application raises for consideration the nature of an appeal against conviction on the ground that a miscarriage of justice occurred because of misconduct of a Crown Prosecutor. The applicant has been convicted of two counts of rape and one of doing an indecent act. Three aspects of the Crown Prosecutor’s comments and address to the jury were examined by the Court of Appeal in this case, and the honourable Justice Jones with whom the other two members of the court agreed, described either compendiously or individually, some of the comments as, quite improper, a clear breach of the Prosecutor’s duty to act fairly and impartially, honestly and temperately, as conduct involving the assertion that the applicant would corrupt the witness, as tantamount to giving evidence from the Bar table and deprecating the opponent and inappropriate and apt to confuse the jury, but the court went on to find that the conduct, although it was to be condemned, did not cause a miscarriage of justice.

FRENCH CJ: Accepting that it was improper, the question is what is wrong with the assessment that the prosecutor’s self-correction on his first remark and the judge’s correction on the second, and the response by defence counsel on the third, has negatived the proposition there was a miscarriage of justice?

MR DEVEREAUX: The applicant would like, if granted special leave, to argue two things: first that that conduct as I have just described it did in this case cause a miscarriage of justice, and second that there is a broader question which is that when a Crown Prosecutor seriously breaches duties which are defined, among other places, in decisions of this Court, there must have been a miscarriage of justice because such a breach involves immaterial irregularity in the process of the trial and subject to the exercise of the proviso there should be a retrial.

BELL J: I am sorry, is not the latter proposition inconsistent with Libke?

MR DEVEREAUX: The Court in Libke applied, what I may call a two-step process, which Australian courts apply. That is so, your Honour.

BELL J: It might be better to concentrate on your first point.

MR DEVEREAUX: There were three, as I have said, aspects of the Crown Prosecutor’s address that were dealt with. The first was that an assertion that defence counsel failed to cross-examine the complainant about her topic because the answer would have been adverse to the defence. The response was, after an objection, the prosecutor purported to correct his own statement. The correction was confusing, in our submission, and left the lingering impression that had the prosecutor been able to get it from the complainant she would have given evidence of a certain threat. That was an incorrect impression to leave. That is why that action of the prosecutor constituted a miscarriage of justice, although each of these on their own might not have; it is the cumulative effect of them all.

The second and, we submit, most serious involved an invitation to the jury to speculate that the reason why the applicant did not tell the police the name of a witness when he was interviewed by police shortly after the events leading to the charges was to give him time to talk to the witness to see whether the witness would lie for him. In response to that the judge raised the matter after the addresses and the summing-up involves two parts where the judge gives direction attempting to correct that.

There are two things to say about that. The first is that of course the attempt to correct involved reminding the jury all over again of what the prosecutor had said in order just to tell the jury that it was wrong and they should not reason that way, and the second is – jumping for a moment to the broader argument that I intended to expand on – that is the sort of issue that is better dealt with in the proviso, in our submission, that is to say, once such an important and serious breach of prosecutorial conduct is established that is such an immaterial irregularity in the process of the trial that there should be held to be a miscarriage of justice subject to the proviso. The proviso is, as directed by this Court in Weiss v The Queen.

KIEFEL J: Do you say that any of these features of conduct of the prosecution were by themselves incapable of correction?

MR DEVEREAUX: Certainly the second one was, in our submission.

KIEFEL J: No application was made to have the jury discharged?

MR DEVEREAUX: No. There was some discussion, as I said, after the addresses. Counsel, it would seem from a reading of the transcript, on instructions sought certain stern directions from the trial judge and did not actually make an application to discharge the jury. The third examined part of the conduct was the prosecutor’s assertion to the jury along the lines that this was a classic rape case. That was really dealt with by counter-argument and Justice Jones in the Court of Appeal was satisfied that that particular error did not lead to miscarriage of justice. Justice Jones summarised his views at paragraph [33] of the judgment which is at page 82 of the application book, that the overall impact of the transgressions –

has been significantly reduced by the taking of objections, by, in one instance, the emphatic and comprehensive correction by the learned primary judge and by the thrust and parry of legal argument.

So that, although the transgressions deserved censure, they –

were not such as to result in a miscarriage of justice.

BELL J: Mr Devereaux, just before move onto another point, can I just query this with you. You referred to the application that defence counsel made in relation to the way the trial judge was to deal with the prosecutor’s invitation to consider that the applicant may have been waiting for an opportunity to collude with the prospective witness rather than nominating. You said that there was an application that the trial judge did some firm directions on that point, but no application for a discharge. Is that right?

MR DEVEREAUX: That is right, your Honour.

BELL J: None of that seems to form part of our application book.

MR DEVEREAUX: No. That part of the transcript is not in the application book.

BELL J: What was it exactly that counsel sought to have his Honour do?

MR DEVEREAUX: Will your Honour excuse me, I have got the - - -

FRENCH CJ: Is there a transcript reference or record book 275/50, I think, in footnote at page 79 here. It said:

Defence counsel at trial dealt with the topic only briefly in this address.

Do we have a statement of what he actually put to the judge?

MR DEVEREAUX: Yes, that is during address. The argument was after addresses, and at page 325 of the transcript – this is not before your Honours – counsel says this at about line 40, having made much in the way of submissions, your Honour:

And they’re my submissions that your Honour should come to this conclusion, with respect – that’s if the trial is to proceed further, your Honour should direct the jury in very clear circumstances that no adverse inference can be drawn against the accused person for not providing this person’s name . . . your Honour should say that the jury cannot seek to assume what evidence that person would have given if –

And his Honour asked for some clarification. A little further over on page 327 trial counsel said this at about line 40. He had intended to mention during his address these things, but he saw one of the jurors:

had collapsed on her face on the bench, I wound up faster than I expected. My mistake. And I didn’t deal with this.”

Then at the bottom of page 327, counsel said:

my instructions are that it’s okay to proceed on the basis of those directions that I am asking for, if your Honour agrees that they should be given.

There can be no complaint really beyond that about the directions that his Honour did give.

FRENCH CJ: The direction that was given really did everything that defence counsel had asked his Honour to do, did it not?

MR DEVEREAUX: Yes.

FRENCH CJ: That is the one set out at 79 and 80.

MR DEVEREAUX: Yes. So the answer to the question of why that did not dispel any fear of a miscarriage of justice is in the delay that there was in the trial between when the address comments were made, which was before lunch on one day, and the directions given by the judge which were at the end of the second day, that is the first of the short directions that the judge gave, and that is at page 42 of the application book.

The long directions that your Honour the Chief Justice has just referred to are at page 52 of the application book and they were on the next day again. So the comprehensive direction dealing with the problem was really almost two days later. That is one issue. That is really the answer. The secondary answer is the one I have gone into about, should the court entertain the broader question, and really this is the sort of thing that should have been dealt with in the Court of Appeal applying the proviso.

BELL J: I should not cut you off, Mr Devereaux, from developing your point. It just does seem to me, and I may be wrong on this, but I would have thought you would have needed to persuade us to revisit the decision in Libke if you were to succeed on that. Your contention is that whenever a prosecutor engages in conduct in the course of a trial that is contrary to the proper ethical standards or might be characterised as improper, that of itself is to be viewed by an appellate court as constituting a miscarriage of justice. Now, that really would require departing from Libke, would it not?

MR DEVEREAUX: It was a principle that was followed in Libke but it was not the issue in Libke. The Court has not really addressed the question. It is not that the applicant is up against a statement of law by this Court. Libke is an example of the way this has been done and the applicant’s submission is, we submit, a modest one which is that if the Court of Appeal is satisfied that there has been sufficiently serious misconduct by a prosecutor as to amount to a material irregularity in the proceedings, then that should satisfy that part of the common form appeal provision, the grant of appeal which is miscarriage of justice, leading then to consideration of the proviso. It is there where the Court may dismiss an appeal if satisfied that no substantial miscarriage of justice actually occurred, that all of these other issues can be taken care of.

Now, if that seems a novel interpretation or meaning to put on the term “miscarriage of justice”, we have two things to say about that. First is this. This Court itself in the context of the application of the proviso in a joint judgment of six Justices has abandoned the quest to divine what a jury, or the jury, would do or might have done had the irregularity in proceedings not occurred. This Court has said in Weiss v The Queen how a Court of Appeal is to apply the proviso and it is not by trying to predict what a reasonable jury would do or work out what the jury in the trial might have done.

In the circumstances, the question is fair, we submit, to ask, why then should an appellant who has successfully demonstrated a material irregularity in his trial because of a breach of conduct by the prosecutor not be in the same position? It really is a material irregularity. I do not propose to read from Weiss v The Queen but that is the effect of that. If to define miscarriage of justice in the way that we submit seems at odds with the practice in Australia, and I concede that it is different from what was done in Libke v The Queen, it is not without precedent. The Court of Appeal in Weiss v The Queen, after reviewing the history of the adoption of the proviso, said at [2005] HCA 81; 224 CLR 300 at 308:

What the history reveals is that a “miscarriage of justice”, under the old Exchequer rule, was any departure from trial according to law, regardless of the nature or importance of that departure. By using the words “substantial” and “actually occurred” in the proviso, the legislature evidently intended to require consideration of matters beyond the bare question of whether there had been any departure from applicable rules of evidence or procedure. On that understanding of the section as a whole, the word “substantial”, in the phrase “substantial miscarriage of justice”, was more than mere ornamentation.

So the two-step approach which has grown up in Australia, at least since this Court’s decision in Mraz v The Queen in 1955, is not, we submit, infallible. It is open to review, particularly taking into account the position that a Crown prosecutor occupies in the criminal justice process. We do not submit that for all purposes where an appeal is based on that ground, miscarriage of justice, that this reasoning need apply, but there are reasons why, set out in our outline, the misconduct of a prosecutor is a special case and is different from the other forms of miscarriage of justice examples that are often used.

One example is where there has been a misstatement of fact by a trial judge to a jury. Now, it is reasonable to expect an appellant to demonstrate that a misstatement of fact actually caused a miscarriage of justice because facts are for the jury and the jury would have heard the evidence just like anybody else. So there is a difference there between that and what a prosecutor does. A prosecutor knows things that the jury do not know and the prosecutor, when speaking to the jury, is in a different position. If there is prosecutorial misconduct, that is of a different quality from a misstatement of fact, which is one of the examples in miscarriage of justice.

Another example of miscarriage of justice is a fresh evidence point. The difference there is, of course, it is asserted that there was a miscarriage of justice because something was missing from the trial. Here, the assertion is there was a miscarriage of justice because there was a material irregularity in the trial. There is also an important difference between this argument and the one that arises in the miscarriage of justice on the grounds of improvidence of defence counsel. That rests in the principle that parties are bound by the conduct of their counsel. This was referred to by the former Chief Justice Gleeson in Nudd v The Queen. That being the starting point, it is reasonable to expect an appellant to demonstrate that the material irregularity in the trial actually caused the miscarriage.

FRENCH CJ: Essentially what you are putting to us may not be so much a question of legal principle as a question of how one approaches the characterisation of this kind of misconduct against the test of whether there is miscarriage of justice. I am not talking proviso now. You are saying that the nature of it is it required characterisation as a miscarriage of justice and then the Court would then explore the question of proviso. That is really perhaps more an administration of justice ground than a ground of principle, is it, in terms of grant of special leave? It is not so much a question of law as a question.

MR DEVEREAUX: It is open for this Court to give direction. I guess I am cornered to conceding your Honour’s point, but if - - -

FRENCH CJ: It does not necessarily run against you. It is just that I am wanting to understand the head upon which you seek special leave.

MR DEVEREAUX: Yes, I accept that, thank you, your Honour. Insofar as this argument proposes the making of a species of miscarriage of justice, for example, a category, that is not unreasonable and courts can manage that. An appeal court can recognise what it considers to be a material irregularity. That is the point, that where a Court of Appeal is satisfied that there has been such a material irregularity, and in this case warranting censure, that of itself should amount to a miscarriage of justice and, subject to the proviso, should allow the appeal.

FRENCH CJ: I think your time is up. Yes, Mr Copley.

MR COPLEY: Your Honours, in this case there should be no grant of application for special leave. Justice Jones, who delivered the judgment for the court below, proceeded in an entirely orthodox fashion. He concluded his judgment by accumulating the various aspects of the prosecutor’s conduct which he found to be either unfair or improper and addressed himself to the question of whether or not that wrong conduct occasioned a miscarriage of justice. Even though his Honour did not cite in his judgment that he was applying the approach in Libke v The Queen, that was exactly what this Court did in Libke v The Queen. That can be seen most clearly at [2007] HCA 30; 230 CLR 559 at page 589 at paragraphs 81 to 83 in the judgment of Justice Hayne, with whose judgment the Chief Justice and Justice Heydon agreed, where his Honour said:

The comments the trial prosecutor made . . . departed from the rules that ensure the orderly conduct of a trial. But that observation does not answer the critical question presented by the appeal provision . . . That question is whether there was a “miscarriage of justice”.

His Honour Justice Hayne went on to say in paragraph 82:

Would these repeated expressions of alignment with the prosecution case -

by the prosecutor -

have distracted the jury from their task . . . Would other aspects of the cross-examination have caused or contributed to that consequence?

He concluded “no” for a number of reasons. One of the reasons he had regard to was the combination of verdicts that were returned which in that case was a combination of acquittals and convictions. That is the situation here. On the count of attempted rape the jury acquitted. That is an indicator that the directions that his Honour the trial judge gave to the jury and the self-correction that the prosecutor was compelled to submit himself to were apparently effective to achieve or to quarantine his unfair conduct from influencing the jury.

BELL J: One observation to be made by reference to Libke is that Libke had been handed down some months at least before this trial and it is in some respects a matter of concern that against a background of a relatively recent examination of the standards of fairness required of a prosecutor one would find the Court of Appeal having to deal with grounds of this nature in such a case. Mr Devereaux’s contention is that the Court of Appeal was in error in concluding, particularly by reference to the second instance of wrong conduct, that the trial did not miscarry.

MR COPLEY: In relation to that aspect of the matter, defence counsel got the emphatic directions that he desired. This Court has proceeded again and again on the assumption that a jury ordinarily obeys directions. I point again to the acquittal on the count of attempted rape which - - -

BELL J: Can you just explain, Mr Crown, the allegations – I am just seeking to understand the significance of the acquittal on the attempted rape relative to the facts, including the matters that were of significance with respect to the suggestion that the applicant had colluded or proposed to collude with the witness.

MR COPLEY: As far as it can be ascertained from the application book, the significance of the allegation of collusion was that there was a person apparently about who was present when the applicant suggested that this girl go off with him and have relations and the offender declined to identify that person in his interview with the police. The prosecutor said to the jury effectively, well, would he not have been falling over himself to give the police the name of that man because that man could exonerate him.

BELL J: I understand that. What is the significance in your argument to the verdict of not guilty on the attempt?

MR COPLEY: The significance is that the jury applied themselves to the task of asking, are we satisfied beyond reasonable doubt in relation to each of these counts? For one reason or another they were not satisfied in relation to the count of attempted rape, which was the first count. The significance is that the verdicts are capable or the combination of verdicts is capable of demonstrating that the wrong conduct of the prosecutor did not affect the outcome. Or if it could potentially have affected the outcome, the wrong conduct was corrected by the directions of the judge and corrected to some extent by the prosecutor’s correction of himself.

I would also rely upon the defence counsel’s decision not to apply for a mistrial. He was content to allow his Honour to correct these matters. His Honour Justice Jones regarded the correction, particularly in relation to the most serious matter that the applicant had an onus, as it were, or an obligation to tell the police about matters that might exculpate him, as a comprehensive and emphatic correction. The jury could have been under no doubt at all that he (a) had no obligation to do so and (b) there could be any number of reasons why he would not have wanted to tell the police the name of that man.

BELL J: The difficulty is, when one gets improper comment of that kind, that in order to correct it necessarily the trial judge repeats the tenor of the attack then telling the jury to put the matter out of their minds. I hear what you say, Mr Crown, that there was no application but it is the troubling feature when Crown prosecutors overstep the line.

MR COPLEY: Yes, it is, your Honour, but the correction that we can see at pages 79 and 80 of the application book, in my submission, would have impressed the jury as a thorough denunciation of the prosecutor’s improper suggestion. In fact, one could imagine if one was in the courtroom hearing it how embarrassed or humiliated even the prosecutor would have felt with that condemnation from his Honour. His Honour Justice Jones did not make the mistake of analysing each of these in turn and saying, well, that was not productive of a miscarriage, this one was not. He correctly combined them all up at the end and asked himself, was there a miscarriage of justice when they were all considered together.

The applicant in this case is really inviting your Honours to depart from the approach this Court took so recently in Libke which was subsequent to the decision in Weiss v The Queen. I can add that your Honours need not be concerned with the notion that the Court of Appeal is, as it were, adopting perhaps too robust an approach towards these matters. I think of the matter of R v Smith decided in 2007 in the Queensland Court of Appeal where the conviction was quashed and a retrial ordered because of the comments of the prosecutor. These matters can only be judged on a case-by-case basis.

As his Honour the Chief Justice said at paragraph 2 of his judgment in Libke, it is a question of assessing the nature and the degree of the misconduct and then what is done to correct it. But we have not, in my submission, got to the position and should not in this country get to the position where unfair conduct by the prosecutor automatically translates into a miscarriage of justice any more than we should get to the position in this country where incompetence of a defence counsel should translate automatically into a miscarriage of justice. There are different rules, of course, for the way a prosecutor conducts himself from a defence counsel, but your Honours are really being asked to elevate one error or one mistake to an automatic level of miscarriage of justice whereas another does not reach that level at all.

FRENCH CJ: It is not a matter of automatic, is it? It is a question of qualitative assessment. Has this fallen over a threshold where on any view it ought to have been regarded as a miscarriage of justice and then the question of proviso examined? That is the way it is really being put here and it is being put as a matter of administration of justice for the purpose of granting special leave.

MR COPLEY: I shall correct my submission and say that – and this is the way I understand it – that if the conduct deserves the description of being unfair conduct, should that therefore equate to a miscarriage of justice? In my submission, that is simply not the way the Court approached it in Libke which was so very recently decided and this would not be a good case to reassess the approach in Libke for some of the reasons that I have pointed to, namely, the acquittal on count 2, conviction on other counts, the absence of an application for discharge by the very person who was best able to assess the seriousness or the egregiousness of Crown counsel’s conduct. They are my submissions, thank you, your Honours.

FRENCH CJ: Thank you, Mr Copley. Yes, Mr Devereaux.

MR DEVEREAUX: May we just respond with respect to the discussion about the acquittal and its relevance. At page 27 of the application book, at the bottom of the page in the trial judge’s summing-up, he told the jury what the evidence there was, starting from the last paragraph on 27 and over the page to about line 20. It is our submission that it was quite likely that the jury simply did not think that was enough to amount to an attempt and

that the acquittal on count 1 had nothing to do really with a finding of credibility one way or the other, whereas the evil in particularly the second misconduct by the prosecutor was to put credibility in issue and then attack the applicant’s credibility in an impermissible way and invite the jury to speculate impermissibly. Thank you, your Honour.

FRENCH CJ: Thank you.

The applicant was convicted in the Rockhampton District Court on 14 March 2008 of two counts of rape and one of an indecent act committed at Rockhampton in 2002. An appeal to the Court of Appeal on grounds of improper conduct by the prosecutor in closing address was dismissed on 1 October 2008.

The prosecutor’s remarks were improper. Such conduct is to be deprecated. In this case, however, the Court of Appeal carefully considered the effect of the prosecutor’s self-corrections on the first remark, the judge’s correction on the second and the response by defence counsel on the third, together with the absence of any request for a corrected direction in that respect.

On the most egregious of the improper remarks the trial judge directed the jury in accordance with the request of counsel for the defence. No discharge of the jury was sought. The Court of Appeal concluded that there was no miscarriage of justice. In our opinion, no error appears on the face of its reasoning in that respect. The grant of special leave should be refused.

AT 11.19 AM THE MATTER WAS CONCLUDED