Rossi v The Queen [2013] HCATrans 107 (10 May 2013)

Last Updated: 16 May 2013

[2013] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M102 of 2012

B e t w e e n -

GIOVANNI ROSSI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 MAY 2013, AT 2.12 PM

Copyright in the High Court of Australia

MR L.C. CARTER: May it please the Court, I appear with my learned friend, MR M.D. STANTON, for the applicant. (instructed by Spicer Lawyers)

MR B.L. SONNET: If the Court pleases, I appear on behalf of the respondent. (instructed by Office of Public Prosecutions)

KIEFEL J: Yes, Mr Sonnet. Yes, Mr Carter.

MR CARTER: Your Honours, in our submission, it is in the interests of justice that special leave be granted in this case because the applicant’s conviction was returned at a trial where two substantial errors occurred, and indeed were accepted to have occurred by the Court of Appeal. The Court of Appeal, in our submission, ought to have held that the applicant did not have a fair trial according to law and that there had been a significant denial of procedural fairness, resulting in an order for a retrial. In our submission, the Court of Appeal made three errors in arriving at the conclusion that there was no substantial miscarriage and they reflected in the grounds set out in the draft notice of appeal at appeal book 725.

The first ground involves, in our submission, error of principle, and your Honours may have noted that judgment in this matter was delivered on 21 September 2012, shortly prior to this Court’s decision in Baini v The Queen [2012] HCA 59; (2012) 293 ALR 472. May we take your Honours to appeal book 720, to the concluding sections of the reasons of Justice Buchanan, with whom the other members of the court agreed. Having identified at paragraph 27 that the question was whether there was:

a substantial miscarriage of justice within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009.

His Honour continued, and if I could take your Honours to the end of paragraph 28:

The task for this Court is not to predict what the jury may have done but to decide whether a substantial miscarriage of justice has actually occurred.

His Honour there identifies specifically the judgment of this Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, at paragraph 41. Your Honours have that authority at number 1. The statutory task explained in Weiss did not deal with the Criminal Procedure Act, it dealt with the Victorian version of the common form of criminal appeal provision. At paragraph 41 of the joint reasons in Weiss, page 316, the Court states “That task”, that is the statutory task under 568:

is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.

Now, the task, as the joint reasons in Baini made plain, your Honours, when the Court of Appeal is considering grounds of appeal pursuant to sections 276(1)(b) and (c) of the Criminal Procedure Act, the question of whether there has a been a substantial miscarriage includes – and this is in Baini in the joint reasons at page 479, paragraph [32], which your Honours have as the second authority in the joint list – whether a guilty verdict was inevitable, not whether a guilty verdict was open. Whether the verdict was open is the question presented by 276(1)(a), namely the modern version of the unsafe ground.

So, it is respectfully submitted, your Honours, that the Court of Appeal, admittedly not having the benefit of this Court’s reasons in Baini, specifically directed itself to its task, having found two errors, in accordance with the approach in Weiss that has been quite deliberately changed following this Court’s decision in Baini, and that accordingly the proper question has not yet been asked, namely, whether, to the extent that the strength of the case was a relevant consideration, made clear also in Baini but it is not determinative, whether the guilty verdict was inevitable.

KIEFEL J: Well, in both Baini and Weiss what they have in common is of course that the Court must be satisfied to the requisite standard on the whole of the evidence; that is, beyond reasonable doubt. But, as you say, the language used in Baini was that a guilty verdict must be inevitable. Does not the question here come down to whether the view of the Court of Appeal expressed at special leave book 720, paragraph 30:

The Crown case, in my view, was overwhelming. The notion that the blow torch was lit accidentally was fanciful.

I think that was the only real defence. The question is whether or not that is the same as saying it is inevitable. Why is it not?

MR CARTER: Well, your Honour, your Honour is quite right that in order to demonstrate that this is a proper vehicle - - -

KIEFEL J: Well, I think that is it, but why is not a view that overwhelming and that the only defence put forward was “fanciful”, not equal, the requirement of Baini that it be inevitable?

MR CARTER: Your Honour, we advance submissions on that under cover of ground 2 and you will have seen, for example, at paragraph 30 and 31 of the written submissions challenge is made to the reasoning of the Court of Appeal, and it is, with respect, very brief reasoning as to why the conviction on the count was overwhelming, or why the Crown case was overwhelming. But, just before I get to that, with respect, to your Honour Justice Kiefel, there is a deliberate distinction made in Baini between the determination of an unsafe ground where the question is, as your Honour says, whether the conviction was open, namely, could the jury be satisfied beyond reasonable doubt, and on the other hand – and this is the correct test, with respect, under Baini – whether conviction was inevitable.

KIEFEL J: Now, “overwhelming” in this context must surely mean there is nothing that can be put against it.

MR CARTER: No, your Honour, with respect, we are not here to argue that special leave ought be granted on the basis that inevitability is stronger than “overwhelming”, although we would concede that it is, but that is not a matter of itself that would warrant a grant of special leave. Can we, though, your Honour, indicate why the Court of Appeal is, with respect, wrong in its conclusion that the Crown case was overwhelming?

First, the Court of Appeal do not consider in that conclusion the impact of the two errors that they upheld. As your Honours are aware, and I will come back to that if I may in a moment, the first error was the failure to give an Edwards direction as to flight in circumstances where the Prosecutor raised the argument for the first time in final address, contrary to all practice and authority, certainly in Victoria and in other jurisdictions. His Honour Justice Buchanan held in relation to that error at appeal book 717, paragraph 16:

there was a significant risk that the jury may have reasoned that the appellant leaving the scene was relevant because it was inconsistent with the appellant’s innocence –

KIEFEL J: Could I just interrupt you there so that I can better understand your paragraph 30 of the written submissions? You talk about the applicant’s defence being that he was pushed back against the fence and was tired and scared, you are not suggesting that a special leave point arises in relation to a defence of self-defence, do you?

MR CARTER: No, your Honour, the special leave points are - - -

KIEFEL J: You go on to discuss intention, is that what it hinges on? That he did not intend to cause serious injury?

MR CARTER: No, your Honour, these are points that we advance to persuade your Honours that the Court of Appeal’s conclusion - - -

KIEFEL J: Was wrong.

MR CARTER: - - - that the Crown case was overwhelming if flawed.

KIEFEL J: Well, I am sorry, I just do not see the connection.

MR CARTER: Well, could I come back to it?

KIEFEL J: How does what his defence might have been impact upon the Court of Appeal’s discussion of the weight of the evidence?

MR CARTER: Because, your Honour, with respect, the Court of Appeal in that crucial paragraph, paragraph 30 erroneously characterised that the defence was one of accident. The courts state:

The notion that the blow torch was lit accidentally was fanciful . . . It is hardly likely that the blow torch could have been ignited by accident –

That was not the defence case at all, your Honour. The applicant’s defence was that while he was in a struggle with Mr D’Amore, and being pushed into a fence, a fact accepted by Mr D’Amore who said he was attempting to hurl the applicant over the fence, he deliberately lit the blow torch to scare off Mr D’Amore. So the error there, your Honour, with respect, is important because it is the core of the Court of Appeal’s conclusion that the case on intention to cause serious injury was overwhelming, that what they are saying is fanciful was never in fact the position. With respect, your Honours, allied to - - -

KIEFEL J: What – sorry, but what they are saying inferentially is that it was clearly deliberately lit in a situation in close proximity to a person soaked in fuel. The intention is a pretty easy inference from that, is it not, intention to harm?

MR CARTER: Your Honour, with respect, what the court stated in that passage twice is:

The notion that the blow torch was lit accidentally was fanciful.

This is really the key paragraph that the applicant has denying him a retrial, twice state “the notion that the blow torch was lit accidentally was fanciful” when that in fact was never contended.

KEANE J: What they are doing is, in 30, they are discounting the possibility of accident. In 31 they are dealing with the contention about self-defence, they are addressing the possibilities that were open, not necessary the possibilities that your side urged, but just the possibilities that are consistent with innocence, and the first of those, they say, well, accident fails because to light the blow torch required this dual action, and as to self-defence, they refer to your client’s evidence that he deliberately lit the blow torch to scare Mr D’Amore off, and, as to that, when you have thrown diesel oil over someone, to light a blow torch and point it at him, the idea that could be self-defence is hopeless.

MR CARTER: Your Honour, with respect to your Honour, there is a lot in that and some of that did not reflect the evidence and the defence case that the Court of Appeal had to conclude in order to conclude inevitability, that there was no chance of acquittal in light of the errors that had been made at trial. The defence allied to that misstatement, with respect, is the Court of Appeal starts at the bottom of 720, top of 721:

The appellant conceded in cross-examination that in order to ignite the blow torch it was necessary to perform two actions, press a button and pull a trigger.

That is wrong, with respect, your Honours, he did not concede that in cross-examination, he gave that evidence in-chief as part of his defence, particularly - - -

KEANE J: Was he asked about it in cross-examination?

MR CARTER: There were questions about it in cross-examination, but the - - -

KEANE J: Did he repeat it?

MR CARTER: Yes.

KEANE J: So, on any view, whether it is cross-examination or chief, he gave this evidence.

MR CARTER: But, your Honour, with respect, this is a very tight paragraph explaining why the Crown case was overwhelming, we have indicated, with respect, how - - -

KEANE J: Your point is that they are attributed the evidence to cross-examination when it was cross-examination and in-chief?

MR CARTER: Further than that, your Honour, it was an important part of the defence case, see, for example, the final address at 571 to 572, that the fact that the applicant was candid about the mechanism of ignition and had not attempted to set up an argument that it was accidental was an important matter bearing on his credit, and none of these matters are considered by the Court of Appeal in reaching the conclusion that the case was overwhelming.

KEANE J: Well, that is because when you have got the facts that he goes to this man’s residence with diesel oil and the torch and throws the diesel oil on him and then ignites the torch and sets fire to him, it looks like a pretty overwhelming case.

MR CARTER: Your Honour, with respect, could I remind your Honours that in this trial the applicant was acquitted of attempted murder, which meant that the prosecution’s primary case failed.

The prosecution’s case was: attended at the home in the manner that your Honour has just described with the intention of killing the man by setting fire to him. That case having failed, it is of note that his Honour the sentencing judge accepted at appeal book 708, paragraph 27, that the applicant had attended, he had found as a positive fact that the applicant had attended at the home with the fuel and the torch “with the intention of burning the mattress”. So once that issue was resolved adversely to the prosecution, in my respectful submission, the fact that he had attended at the property with those items did not advance the prosecution case with intention and required a close focus on the evidence as at the particular time.

Further too, your Honour, the statement that the fuel was thrown directly onto the victim needed to be understood in the context of the applicant’s evidence that his intention was to throw it onto the mattress and that Mr D’Amore, who was enraged, had charged at him in that same moment, he was standing immediately in front of the mattress. So the submission is, your Honour, that these really became matters for a jury in the end to consider in a trial not affected by two significant errors, and it is important that I return to those, with respect.

So the issue becomes, is there miscarriage in circumstances where there is the acquittal on the prosecution’s primary case and the real question left for the jury was one of intention. But procedural fairness that, with respect, is not dealt with by the Court of Appeal despite the fact that the point was taken at trial and argued by the counsel in the Court of Appeal is that the prosecutor had introduced, in final address without notice, the flight argument, and I have identified what his Honour Justice - - -

KEANE J: The Court of Appeal put that to one side. They do not rely upon that at all. They accept that the question is, can the conviction be sustained, and it can only be sustained on their view if they are satisfied, see Weiss. In addressing that question, satisfied beyond reasonable doubt, and in addressing that question they do not refer to flight, they just look at the evidence, including your client’s evidence, and they say on the basis of that evidence this case was overwhelming.

MR CARTER: Well, your Honour, with respect, if it is been undertaken in accordance with Weiss, and that was our first point, that is in error because Baini departs from Weiss in relation to that. The question of being satisfied beyond reasonable doubt is the question presented by the unsafe ground, the question presented by errors under (1)(b) and (1)(c) is inevitability of conviction.

KEANE J: Well, in terms of the substance of what the Court of Appeal did and said it did, it reached a conclusion that the Crown case was overwhelming, and I think we are agreed that “overwhelming” means the same as “inevitable” in the sense that it means there could not have been any other conclusion.

MR CARTER: Your Honour, the other matter emphasised in both Weiss and Baini, with respect, is that the Court of Appeal will often be reluctant proceeding on the record to make determinations that it cannot make not having the advantage of the jury. In this trial, the issue came down to intention and in turn the credibility of the accused. In the matter of Howard, which is provided as number 4 of the joint authorities, Justice Chernov, with whom Justice Callaway and Vincent agreed, in a similar case in principle, your Honours, where the prosecutor had without notice raised a consciousness of guilt argument in final address, Justice Chernov states at page 351, paragraph 27, having referred at paragraph 26 to the relevant Practice Note concerning the duty of a prosecutor to give advanced notice of such arguments, states at paragraph 27:

the trial was unfair to the applicant inasmuch as he was effectively deprived of the opportunity of challenging the Crown’s case based on consciousness of guilt. Moreover, I think that the unfairness was such as to constitute a fundamental fault in the trial and, thus, rendered the conviction intrinsically flawed.

and Wilde v The Queen is cited. That is the way in which, by ground 2 of this application, and ground 3, we put the nature of this error. It is submitted, with respect, your Honour, that if the historical justification and the reasoning behind the finding of the Court of Appeal that an Edwards direction was required to avoid significant risk, then it must follow, as a matter of logic, under the test articulated in Baini, that there was a possibility that it impaired on the jury verdict. As Baini emphasises, the

value of trial by jury is one of the informing considerations behind the guidance given to 276(1)(b) and (c).

The other fundamental unfairness in this trial, your Honours, was that an eyewitness was read into evidence by the prosecutor, and her cross-examination for the committal played, despite the fact that the Court of Appeal concluded that the trial judge was in error in concluding that she was not available for the purposes of section 65 of the Evidence Act. Now, the Parliament has set, quite deliberately given that it is a major change to the law, a threshold in section 65 that must be satisfied before an absent witness can be read into evidence without being seen and heard. In this case, that was violated. Her evidence as – I note the light, but if I could just finish this point, your Honour. The Court of Appeal accepted at appeal book 719, paragraph 26, that:

Ms Pearce was important to the Crown case for she observed the manner in which the appellant used the blow torch.

Really, on analysis, she was the only one, yet despite - - -

KIEFEL J: But the real issue was intention, not how it was carried out.

MR CARTER: But, your Honour, with respect, the question of mechanism, and whether there had been a deliberate pointing of the blow torch as Ms Pearce had stated in her evidence that was relied on by the prosecution; this all happening over objection from defence counsel, the mechanism, or heavily on intention, because on the defence case it had happened in shock whilst held up against a fence.

KIEFEL J: Your application for special leave really relies on ground 1 as its determinative in a sense, is it not?

MR CARTER: Well, no, with respect, your Honour, because by ground 2 we seek to litigate what is, with respect, an important point of principle as to how an Edwards error in the context of it being procedurally unfair when the trial was introduced cannot be said to be fundamental or radically inclined or, in the language of Baini, a serious breach of procedures.

KIEFEL J: Yes, thank you, Mr Carter. We need not trouble you, Mr Sonnet.

The applicant complains that the Court of Appeal erred in failing to conclude that errors in his trial resulted in a substantial miscarriage of justice within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009 (Vic). In this case, there is no room for doubt, even on the view of the evidence most favourable to the applicant, that he lit and turned a blowtorch on the complainant over whom he had thrown diesel fuel, which he had taken to the complainant’s house. In order to ignite the blowtorch it was necessary to perform two actions: press a button; and pull a trigger.

The Crown case against the applicant on the charge of intentionally causing serious injury to the complainant was accurately described by the Court of Appeal as “overwhelming”. His conviction was inevitable. It follows that there are no sufficient prospects of success on appeal to warrant the grant of special leave to appeal. The application for special leave is refused.

AT 2.35 PM THE MATTER WAS CONCLUDED