Mickelberg v The Queen

The argument that Peter's convictions were unsafe and unsatisfactory proceeded on the basis that, in substance, the evidence which directly linked him with the offences charged consisted of what we have referred to as the handwriting evidence, the identification evidence and the consciousness of guilt evidence. That evidence, it was said, was properly to be characterized as circumstantial evidence and, even if it connected him with the offences, it was reasonably explicable on a basis other than his involvement as principal. In particular, it was argued that the evidence connecting Peter with the car and of the statements made to investigating police is explicable on the basis of assistance and knowledge but falls short of establishing his participation as a principal. Moreover, it was said that there was no evidence of his actual involvement in the offences charged in counts 2 to 8 inclusive of the indictment and that, if the conviction for conspiracy were set aside, it would necessarily follow that these convictions should be set aside. It suffices for present purposes to say that, in our opinion, these matters appear to be fairly arguable, notwithstanding that in Peter's first appeal a concession was apparently made to the effect that the evidence was sufficient to support the convictions for conspiracy and defrauding the Mint.

The question whether Peter should now be allowed to challenge his convictions, either by reference to inconsistency with Brian's acquittal or on the basis that they are unsafe and unsatisfactory, is not without difficulty. It is convenient to approach that issue by considering the function which was imposed upon the Court of Criminal Appeal by the Attorney-General's reference of the "whole case" as against Peter.

Prima facie, the reference of the whole case required the Court of Criminal Appeal to consider the case in its entirety, subject only to the limitation that it "be heard and determined as in the case of an appeal by a person convicted". That limitation necessitates that the matter be determined by "legal principles appropriate to an appeal": Ratten [24] , per Barwick C.J. See also R. v Gunn [No. 1] [25] , per Jordan C.J. and Allen, Allen and Winter [26] .

1. (1974) 131 C.L.R., at p. 514. 2. (1942) 43 S.R. (N.S.W.) 23, at p. 25. 3. (1910) 5 Crim. App. R. 225, at p. 226.

It has been held that, where the whole case is referred, the court may consider matters not relied upon in the petition (R. v Gunn [No. 2] [27] ) and matters not specified in the reference (Reg. v Chard [28] ). On the other hand, it has been said that, as a matter of practice, the considerations may be confined to those in the petition or the reference: see Re Matthews and Ford [29] ; Reg. v Chard [30] . And in R. v Gunn [No. 2] [31] Jordan C.J. stated:

In a case in which there has already been an appeal which has been disposed of on the merits the Court, in the case of a reference such as the present, is not called upon to re-adjudicate upon any ground of appeal which has been already heard and disposed of, unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable. 1. (1942) 43 S.R. (N.S.W.) 27, at p. 31. 2. [1984] A.C. 279. 3. [1973] V.R. 199, at p. 201. 4. [1984] A.C., at pp. 292-293. 5. (1942) 43 S.R. (N.S.W.), at p. 29.

The words of s. 21(a) of the Code, so far as they require "the whole case [to] be heard and determined", permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious: see Jackson v Sterling Industries Ltd. [32] ; Tringali v Stewardson Stubbs & Collett Ltd. [33] ; Metropolitan Bank v Pooley [34] . However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented.

1. (1987) 162 C.L.R. 612. 2. (1966) 66 S.R. (N.S.W.) 335. 3. (1885) 10 App. Cas. 210.

In the Court of Criminal Appeal Wallace J. dealt with the question of inconsistency between Brian's acquittal and Peter's conviction by noting that Peter's appeal was dismissed on the same day that Brian's convictions were quashed. His Honour added that "[t]he court was well aware of the law involved in expressing the opinion that Peter Mickelberg was properly convicted of conspiracy". His Honour then referred to the question of inconsistency as formulated in Darby but added "[t]hat is not the instant case". Olney J. referred to Darby and stated that "[t]here is no substance in the issue raised in Peter's ground 8". Pidgeon J. agreed with the views expressed by both Wallace and Olney JJ.

Whatever the Court of Criminal Appeal might previously have said relating to Peter's conviction for conspiracy, it was not said in the course of an adjudication on the merits as to that conviction. As previously noted, Peter's earlier appeal was limited to his convictions for breaking and entering and setting fire to the premises from which the cheque forms were stolen. That being so, the issue of inconsistency as raised in ground 8 of Peter's grounds of appeal could not properly be excluded as vexatious or frivolous on the basis that it had already been determined on the merits after full opportunity for argument.

The manner in which the Court of Criminal Appeal dealt with ground 8 of Peter's grounds of appeal was, in effect, a failure to deal with the question whether Brian's acquittal and Peter's conviction for conspiracy could be said to be consistent having regard to the evidence presented against them, which question would necessarily have involved some consideration of the sufficiency of the evidence against Peter to support his convictions. To this extent the Court of Criminal Appeal failed to determine the whole case as referred to it and as required by s. 21(a) of the Code.

To say that the Court of Criminal Appeal failed, to the extent identified, to determine the whole case referred to it does not mean that special leave to appeal should be granted. It is clear that the question of the safeness or satisfactoriness of Peter's convictions was not raised in the Court of Criminal Appeal. It is also tolerably clear that, notwithstanding that ground 8 of Peter's grounds of appeal expressly asserted inconsistency between his conviction and Brian's acquittal of the conspiracy, the Court of Criminal Appeal was not invited to determine that issue by reference to the evidence at trial. These considerations would normally be fatal to an application for special leave to appeal. On the other hand, the question whether the convictions are safe and satisfactory is, in our view, fairly arguable and is involved, albeit indirectly, in the question of inconsistency as raised in Peter's ground 8 before the Court of Criminal Appeal. In our view, the interests of the administration of justice warrant the grant of special leave to appeal to Peter Mickelberg to enable consideration of the questions whether his conviction for conspiracy is inconsistent with the acquittal of Brian and whether his convictions are unsafe or unsatisfactory. Before dealing further with these questions it is convenient to note that such a course carries no implications in relation to Raymond's convictions.

Notwithstanding that Peter's ground 8 also seeks to bring the inconsistency of Raymond's conviction for conspiracy into issue, we see no basis upon which Raymond can avail himself of that ground. In the first place, it may be doubted whether the Attorney-General's reference of the case against Peter authorized Peter to raise any question of inconsistency between Raymond's conviction for conspiracy and Brian's acquittal. Moreover, it is clear from the material to which reference has been made in this Court that the evidence as against Raymond connecting him with the cheques used to obtain the gold is sufficient to sustain his conviction for the conspiracy charged. Indeed, at no stage has it been argued otherwise. There being no evidence connecting Peter with the cheques, the evidence which sustains Raymond's conviction for conspiracy would allow that conviction to stand even if Peter's conviction for conspiracy were set aside.

The questions of consistency between Peter's conviction for conspiracy and Brian's acquittal and of the safeness or satisfactoriness of Peter's convictions were not dealt with by the Court of Criminal Appeal. Were this Court now to consider those matters for itself, it would have to do so without the assistance of the Court of Criminal Appeal's analysis of the evidence. In a case as plainly complicated as the present that course is undesirable. The preferable course is for those questions to be remitted to the Court of Criminal Appeal for its determination.

In the case of Peter Mickelberg we would grant special leave to appeal and allow the appeal to the extent necessary to allow consideration whether his conviction for conspiracy is consistent with the acquittal of Brian Mickelberg and whether his convictions, or any of them, are unsafe or unsatisfactory. We would set aside the order of the Court of Criminal Appeal to that extent and remit the above questions to that Court for determination.

In the case of Raymond Mickelberg we would refuse special leave to appeal.