Caruso v The Queen [2013] HCATrans 103 (10 May 2013)

Last Updated: 15 May 2013

[2013] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M109 of 2012

B e t w e e n -

PETER CARUSO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 MAY 2013, AT 11.19 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER, SC: May it please the Court, I appear with my learned friend, MS C.A. BOSTON, on behalf of the applicant. (instructed by Tony Danos)

MR P.B. KIDD, SC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the respondent. (instructed by Solicitor for Public Prosecutions)

CRENNAN J: Thank you. Yes, Mr Croucher.

MR CROUCHER: Your Honours, it is submitted that the Court of Appeal erred in failing to hold that the trial miscarried as a result of fundamental procedural irregularities. Namely, the trial judge’s failure, first, to provide the whole of the jury panel with information relevant to the excuse process prior to impoundment as required by section 32(1)(e) and subsection (2) of the Juries Act, and/or secondly, to have the applicant arraigned in front of the whole of the jury panel from which the jury was ultimately struck.

Turning to the first of those two complaints, in our submission, read together, sections 32(1)(e) and (2) provide that prior to excuses, the Court must inform the panel or cause them to be informed of “any other information that the Court thinks relevant”. Prior to excuses, the judge caused the first part of the panel to be informed of the deceased’s name, the date of death and the place of death, not directly, but through the arraignment process because, of course, the charge particularised those things through the arraignment. But the applicant was not arraigned in front of the second part of the panel and nor was the second part of the panel otherwise provided with that same information, name of the deceased, date of death, place of death. In our submission, these were critical pieces of information.

KEANE J: Not so critical that anybody raised them at the time.

MR CROUCHER: Sorry?

KEANE J: Not so critical that anybody raised them at the time.

MR CROUCHER: That is true enough, although the prosecutor did point out after excuses were taken by the second part of the panel that the applicant had not been arraigned in front of the second part of the panel which, of course, is the practice as our learned friends can see in this stay.

CRENNAN J: Am I right that Mr Dunn was there for the accused?

MR CROUCHER: He is, there he was, yes, your Honour. But that raises the question of, if you like, waiver that has been mentioned in some of the cases but - - -

KEANE J: Well, not so much even waiver but rather just materiality.

MR CROUCHER: Yes, well, in our submission, no, if - - -

KEANE J: It is not a question that goes to whether your client was properly put in charge of the jury.

MR CROUCHER: That is true, with respect.

KEANE J: Which is the sort of formality that might cause the thing to miscarry.

MR CROUCHER: Yes, but it is – when you say not put in charge because he was put in charge in the sense that section 391 requires, I understand that your Honour, but it is still one of those areas, we say, that cannot be waived, that cannot be given away by an accused, a counsel for an accused.

KIEFEL J: Well, you say that, I mean in relation to the first point, whether or not the jury should have been told about the name of the deceased, the paragraph (e) of the section provides a discretion to the trial judge to consider what is necessary.

MR CROUCHER: I assume your Honour says discretion because it uses the word thinks “relevant”.

KIEFEL J: Thought “relevant”, yes. But what was it here that was so critical that ought to have exercised the trial judge’s mind?

MR CROUCHER: The fact is her Honour did provide that information or cause it to be provided through the arraignment in front of the first part of the panel.

KIEFEL J: That does not prove conclusively that it was – it is a critical matter; that is what you have to establish.

MR CROUCHER: We say that is relevant because (a) it is part of the practice, but secondly, it conveys that information.

KIEFEL J: Exactly, it is part of the practice, probably why her Honour did it in the first place.

MR CROUCHER: Well, that is as may be but why is it relevant? Because - - -

KIEFEL J: Why is it critical? That is really what you have to establish?

MR CROUCHER: In the same way that the Act provides that the name of the accused is critical. We submit that in every case of a murder, the name of the deceased would be critical as well. It is in order to give the jurors information that might affect their decision whether or not to apply to be excused.

KIEFEL J: And even then, the application to be excused is not a matter of cause.

MR CROUCHER: That is true but it is one would have expected as a matter of course - - -

KIEFEL J: These are a number of hurdles that are - - -

MR CROUCHER: True enough, your Honour, but it would be accepted, I would have thought, that if anyone said that they wanted to be excused because they were aware of the deceased, they would be excused.

KIEFEL J: That might not be the only thing that the indication of a name gives to a juror.

MR CROUCHER: No, it might indicate familiarity. The name, Rosa Caruso, might indicate, that is the person I know from the shops at Templestowe, or something like that. That is why we say that information is relevant.

KIEFEL J: Why in this case, why was it?

MR CROUCHER: We say, in every case, in every murder case - - -

KIEFEL J: Well, the statute does not obviously think that because it does not require it.

MR CROUCHER: No, but that is because of the structure of the statute, your Honours, in our submission. The way it is set up is that it is trying to cover a multitude of areas. It is covering both civil and criminal trials. Therefore, it nominates the accused and the parties. The accused in the criminal trial, parties in the civil trial. It nominates witnesses who are likely to be called. But the nature of crime, of course, is that there will be all manner of different types of case where sometimes there will be witnesses who are also victims in a case, so there will be a rape case so that person’s name will be listed there, necessarily. There will be other cases where a victim of a crime is not going to be a witness, a homicide, because the person is dead, obviously, but yet that information about that person is critical, in our submission.

There will be other cases where there is no victim of a crime, like in a drug case, so no-one is named. So the Act is drafted in a way to allow flexibility to cater for those different situations. All we are saying is that the name of a deceased person in a homicide is one of those things that squarely falls within paragraph (e) in every situation.

CRENNAN J: The court dealt with this at application book 43 in paragraph 16 where the view was formed by two of their Honours that “the bare possibility that being informed of the deceased’s name” is not enough. The gravamen of what they found is really in the last two sentences:

In the absence of any grounds to suggest that information is relevant to a particular jury panel, we do not consider that it is a mandatory requirement.

MR CROUCHER: We say in response to that, your Honours, a couple of things. First, the idea of suggesting grounds to suggest that information is relevant to a particular jury panel inverts the process is unrealistic. The nature of this process is the parties are not given any information at all about potential jurors before excuses are taken, or on appeal. So it is impossible in those circumstances to make any submission to a judge prior to empanelment, or prior to the excuses process, unless someone is recognised by sight that the person should be excused.

You know these days you are empanelled by number, almost invariably and the most you hear of someone is their occupation or something like that. So you are not given the sort of information that would enliven this idea of putting forward information. Insofar as their Honours might be speaking of something coming to light later, so for example if someone put their hand up after empanelment halfway through a trial and said actually now that you say this I realise that there is a connection. You do see that happening sometimes and of course application is then made to discharge duties and that usually happens depending on the particular circumstances.

But just because it did not happen does not mean that the process was not complied with in this case. In our respectful submission, the way in which to reason it is to say first that in each case of murder, or homicide generally, the name of the deceased is just as relevant as the name of the accused and the same reasons that an accused is nominated as a mandatory requirement in paragraph (a) or (b) or whatever it is, is the same reason why the name of the deceased should fall within paragraph (e).

CRENNAN J: Here the deceased and the accused have been married for 49 years, is that right?

MR CROUCHER: Yes, that is right.

KIEFEL J: On the second ground, the failure to arraign on the second occasion, you do not I understand put that so much as a miscarriage point as a natural justice fairness question.

MR CROUCHER: Well, it is a process point that would enliven section 276(1)(c).

KIEFEL J: But was it the case that the senior counsel appearing for the accused reminded the jury that he had pleaded not guilty?

MR CROUCHER: The judge herself said as much. After the prosecutor pointed out that he had not been arraigned in front of the jury panel, this was after the second lot of excuses, the counsel for the prosecution said so and the judge simply said I am letting you know he pleaded not guilty. That, with respect though, is not the point.

KIEFEL J: Your natural justice point is that the jury is entitled to see him say it in the manner in which he said it.

MR CROUCHER: Indeed, that is part of it.

KIEFEL J: That assumes that he will do it in a way which is in his favour. You are talking about a jury entitlement, not an accused entitlement.

MR CROUCHER: It is a practice that has ripened into - - -

KIEFEL J: It might be a practice but it does not always work to the advantage of an accused. Why should we infer that?

MR CROUCHER: Your Honour, with respect, is right. In fact, it is one of those things – it is a very solemn part of the proceedings. That is why it is so important. It is common to make sure that your client understands the solemnity of that process and firmly says, not guilty.

KIEFEL J: Exactly.

MR CROUCHER: That chance has been lost, your Honour.

CRENNAN J: Well, now again the court dealt with this at application book 45, they dealt with this fairness issue and included in their considerations was that:

The jury were able to observe the appellant throughout the trial. The jury saw and heard the appellant give extensive evidence. Further, we do not think that there was any benefit to be derived by the accused uttering two words before the jury panel.

So the fairness points have been dealt with here. Do you make some challenge to the way in which they were - - -

MR CROUCHER: Yes. Giving evidence is different from pleading not guilty, your Honours, firstly, it is a different process. And as Justice Kiefel pointed out a moment ago, the solemnity of that process is very important. That is the first thing to say about it. The second thing is that those arguments there fail to – seem to assume that merely giving evidence cures it. That cannot be right. It is an essential part of the process that has been missed. Thirdly, those remarks that your Honours pointed to, they fail to recognise that there was an imbalance as well in the information that was given to those two parts of the jury panel.

The other part of the panel, as we have indicated, through the arraignment, had the name of the deceased and the date and place of death and a difference in the process to which they were exposed. If a juror were absent for any part of the evidence in a case, even an innocuous part of the evidence, or absent during any part of the deliberations, or were separated in some way from the balance of the jury panel during deliberations, then it matters not a jot whether it can be said that anything flowed from that. That failure in process would amount to an error in respect of which, in the old common form criminal appeal statutes the proviso could not be applied, and equally under the new form in section 276 there would be ipso facto a substantial miscarriage of justice. So that is what we say about that.

We also say about this second ground that our learned friends rely on section 391 of the Crimes Act, and this is at page 70 of the application book at paragraph 3.29, where it is set out, and you will see that it is in these terms. Section 391 which applied at the time of this trial said:

If any person arraigned on any indictment or presentment pleads thereto “Not Guilty”, he shall without further form be deemed to have put himself upon the [country] for trial; and subject to section 391A the jury for his trial shall in the usual manner be impanelled accordingly.

The usual manner of empanelment in this State for eons has been that irrespective of whether a person has entered a plea of not guilty at some earlier pre-trial stage, is that it occurs in the presence of the panel, the whole panel.

KEANE J: No, that is not talking about the arraignment of the accused, “the usual manner”. The “usual manner” is about empanelling. It is not about arraigning. There are States of the Commonwealth where the process of arraignment by law takes place to put the jury in – to put the accused in charge of the jury. Victoria is not one of them.

MR CROUCHER: Your Honours, our learned friend is relying on the English case of Williams where they say that even a failure to arraign, full stop, is not necessarily fatal. There is no equivalent section 391 – I will come back to your Honours point at the moment. Second, there is no equivalent practice which our learned friend concedes exists in Victoria. Thirdly, in response to your Honour Justice Keane’s point, we say that empanelment embraces that process; that is, getting a jury into the court, being arraigned in front of that jury, then calling for excuses, then selecting a jury. That is what empanelment means, in our respectful submission. If that is an issue, then that is a matter for this Court to consider, it is submitted, in the context of this case.

KEANE J: Why is that not a question for the Victorian courts to determine a question of Victorian practice?

MR CROUCHER: That is understandable, your Honour, but we say there is a miscarriage in this case as a result of that.

KEANE J: Well, that is another question. Are you going to turn to the question of miscarriage?

MR CROUCHER: Yes, which then turns on, as I say, these were types of error, first and second ground in either of its forms or to be relied on section 391 or on the procedural fairness aspect, are such that the proviso under the common form appeal statutes would not be engaged. Recently, this Court – and we have not put this in our authorities, your Honour, but in Baini v The Queen, and if I could hand it up and read from a passage, your Honours if I may. Baini was decided and after this case was decided and it is the first decision of this Court on section 276 of the Criminal Procedure Act which is the successor to the original common form appeal provisions in section 568 of the Crimes Act. You will see it in paragraph 33 of the joint judgment that this was said that:

s 276 . . . encompassing, within the expression "substantial miscarriage of justice", not only an error which possibly affected the

result of the trial but also some departures from trial processes (sufficiently described for present purposes as "serious" departures), whether or not the impact of the departure in issue can be determined.

As I say, under the common form criminal appeal provisions, errors or irregularities of this type have been held to be fundamental errors or errors that go to the root of the proceedings or errors that go to process and such the proviso is not engaged, irrespective of any impact of the verdict. In our submission, that passage from Baini suggests that 276 in that regard is no different form the common form of the appeal statutes.

KEANE J: The proviso is common to everybody.

MR CROUCHER: Exactly, but in Victoria now because there is no proviso per se anymore, there is just this term “substantial miscarriage of justice” the court spent a lot of time considering whether they should adopt reasoning from previous common form criminal appeal statute cases. In particular, Weiss’s Case, but said, we will look at it again. But that passage, in our respectful submission, encapsulates the idea that at least in this category of error, the same types of reasoning or same types of thinking apply.

The cases to which we referred in our summary of argument such as Hall’s Case, Panozzo & Iaria, they are just examples of where errors in respect of the constitution of a jury or the empanelment process are such that it ousts question of waiver, ousts question of proviso. They are our submissions, if the Court pleases.

CRENNAN J: Mr Kidd, we do not need to trouble you.

The applicant was convicted of murder following a jury trial in the Supreme Court of Victoria before King J. The Court of Appeal of the Supreme Court of Victoria (Buchanan, Neave and Redlich JJA) unanimously dismissed his appeal against conviction. The applicant applies out of time seeking special leave to appeal against that order. However, the applicant would enjoy insufficient prospects of success to warrant a grant of special leave to appeal. Special leave to appeal is accordingly refused.

AT 11.38 AM THE MATTER WAS CONCLUDED