R v Giri

HEYDON JA : 1 On Tuesday 12 June 2001 the court delivered judgment in this matter. 2 On Friday 15 June 2001 the following document was filed on behalf of the appellant: "It has been brought to our attention that the judgment of the court in this matter was delivered on Tuesday 12 June 2001. At the time we were not aware that judgment was about to be delivered and we had proposed that a short additional written submission should be filed on behalf of the appellant in reply to the supplementary submissions filed by the Crown. That submission was in the course of preparation at the time that judgment was delivered. We also note that in dealing with this matter the court has considered the application of the proviso to s 6 of the Criminal Appeal Act 1912. It is respectfully submitted that the appellant should have been given notice of the fact that consideration was being given to the application of the proviso and the opportunity to be heard in relation to this issue. There are matters of substance which in our respectful submission should be considered on the question of whether it is appropriate to apply the proviso in this case. The appellant would wish to draw the attention of the court to relevant authority on this question apart from the authorities referred to in the brief reference made to the proviso in the Crown's supplementary submission. The further submissions on the proviso could, subject to the court's preference, be addressed in written submissions. For the purpose of hearing the appellant on the issues referred to above, it is respectfully submitted that the court should refrain from perfecting the order of the court as contemplated in the judgment of 12 June 2001."

That document appeared over the typed names of Paul Byrne SC and Gabrielle Bashir, though only the latter signed it. It is not clear whether the document was served on the Crown at about the same time that it was filed. 3 On Monday 18 June 2001, the appellant was advised to file and serve the written submissions he wished to file on or before 4pm on Wednesday 20 June 2001. This he did. They appeared over the typed names and signatures of Paul Byrne SC and Gabrielle Bashir. The Crown has not been asked to respond to them.

Notice of delivery of judgment 4 The first proposition which calls for examination is the proposition that on 12 June 2001 "we" were not aware that judgment was about to be delivered. The Registry gave advance notice to the office of the solicitor for the appellant, Ross Hill & Associates, Solicitors of Dee Why, of the fact that judgment was to be delivered on 12 June 2001. The record of appearances made at the time when judgment was delivered reveals that Mr Ross Hill was in attendance on that occasion. What the Registry did was appropriate. It is not necessary for counsel for a party, as distinct from the solicitors for that party, to be advised of the time when judgment is given.

Forestalling of appellant's written submissions 5 The second proposition which calls for examination is the suggestion that the delivery of judgment on 12 June 2001 deprived the appellant of an opportunity to respond to the Crown's Supplementary Submissions. The following chronology is relevant.

• On 26 February 2001 the appeal was called on for oral hearing and argument, recorded in 23 pages of transcript, proceeded for some time. It was agreed that judgment should be reserved until after the High Court delivered judgment in Azzopardi v R .

• On 3 May 2001 the High Court delivered judgment in Azzopardi v R [2001] HCA 25.

• On 9 May 2001 the appellant filed "Supplementary Submissions".

• On 14 May 2001 the Crown filed "Supplementary Submissions" in answer to those of the appellant.

• On 12 June 2001 the judgment complained of was delivered. 6 Neither set of Supplementary Submissions was filed with the leave of the court. Strictly speaking that should have been sought. The failure to do so was in the circumstances venial, because it was sensible to put in further written submissions about Azzopardi v R speedily so that the court could consider the impact of that case on the arguments already presented and deliver judgment within a reasonable period. However, if leave had been sought, an opportunity would have been afforded for the appellant to make plain his desire to put in written submissions in reply to the Crown's Supplementary Submissions, which desire it is now said has been thwarted. Given that leave was not sought, if the appellant had wanted to reply to the Crown's Supplementary Submissions it had more than four weeks to do so before judgment was delivered. In view of the appropriate and considerable speed with which the two sets of Supplementary Submissions were generated, that gave very much more than ample time. The court was given no notice of the appellant's intention of filing written submissions in reply.

Denial of natural justice 7 The third matter which must be examined relates to the complaint that the appellant "should have been given notice of the fact that consideration was being given to the application of the proviso and the opportunity to be heard in relation to this issue." This is a complaint that the appellant has been denied natural justice. If it is soundly based, it is a complaint of the utmost seriousness. By way of background, it must be noted that on the face of it the 15 June 2001 document adopts a tone of very considerable surprise that the court should have taken the step of considering the application of the proviso. Several observations are called for. 8 The first observation is that all four grounds of appeal relied on s 6 of the Criminal Appeal Act 1912, and it is not logically possible to consider the application of the totality of that section without considering the proviso to it. 9 The second observation is that the written submissions of the Crown filed on 21 February 2001, before the oral hearing on 26 February 2001, contain material, including the citation of four cases, directed to the proposition that even if Ground 2 was made out, that being the ground on which the appellant's arguments were eventually found to be valid, there had been no miscarriage of justice and the proviso should be applied (paragraphs 24-25). These paragraphs were quoted in the minority judgment delivered on 12 June 2001. 10 The third observation is that those paragraphs were amplified, with detailed evidence references, in the Crown's oral argument on 26 February 2001 (transcript pages 15-19). 11 The fourth observation is that counsel for the appellant in oral argument in reply on that day took issue with the contention that the proviso should be applied (transcript pages 21-22). 12 The fifth observation is that in the appellant's Supplementary Submissions filed on 9 May 2001 the last paragraph dealt with the proviso and denied that it should be applied. 13 The sixth observation is that in the Crown's Supplementary Submissions filed on 14 May 2001, a short paragraph was devoted to the proviso in the following terms: "Alternatively, contrary to the appellant's submission, this is a case where the proviso to the Criminal Appeal Act should be applied: See Davis , supra, R v Bozzola [2001] NSWCCA 8."

Davis v R was a special leave application decided at the same time as Azzopardi v R in which the High Court applied the proviso. Evidently if the appellant had neglected to contend that the proviso should not be applied, that was a state of affairs which had escaped the attention of the Crown. 14 In all the circumstances it is necessary emphatically to reject the astonishing suggestion that the appellant should have been given specific notice that consideration was being given to the application of the proviso and that the appellant was not given any opportunity to be heard on that question. He could have advanced written submissions on the proviso as part of his written submissions dated 15 January 2001, in anticipation of the unsurprising contingency that the Crown would rely on it. He could have advanced written submissions on the proviso in reply to what the Crown said in its written submissions of 21 February 2001. He could have advanced, and indeed he did advance, oral argument about the proviso on 26 February 2001. He had a self-conferred opportunity to make a further submission in the Supplementary Submissions of 9 May 2001. And in the period from 14 May 2001 to 12 June 2001 he had ample time, if so advised, to respond to the Crown's brief written submission on the proviso in its Supplementary Submissions dated 14 May 2001.

The appellant's desire to advance further argument on points on which he succeeded 15 The fourth proposition to be dealt with is the suggestion that the argument should be reopened in order to allow the appellant to reply to the Crown's Supplementary Submissions in relation to Azzopardi v R. At the time of the filing of the 15 June 2001 document and at the time of the filing of the 20 June 2001 Further Supplementary Submissions, it would have been apparent to a reader of the reasons for judgment delivered on 12 June 2001 that the court was unanimous in upholding the appellant's submissions on Azzopardi v R. It follows that paragraphs 2-5 of the Further Supplementary Submissions were completely unnecessary, and no reason is advanced in them for why they were put forward.

The appellant's desire to advance further argument on points on which he failed 16 The fifth proposition to be considered is that the argument should be reopened to permit the appellant to advance further argument about the proviso. 17 It is clear that an appellate court may reopen a case which has already been decided if it was decided on a point on which the losing party has, without personal fault, not been heard: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302, 308, 312, 317 and 322. It is also the case that an appellate court may reopen a case which has already been decided on other grounds: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302 and 322. But, according to Mason ACJ, Wilson and Brennan JJ in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684, in practice the circumstances: "are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution".

In State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38 Mason and Wilson JJ said: "The circumstances that will justify a rehearing must be quite exceptional." In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-3 Mason CJ said: "the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases." 18 Can it be said in this case that the appellant has shown that by accident without fault on his part he has not been heard on the proviso? No. He has been heard on it. If he wanted to say more about it he should have said it on the appropriate occasions on which he had a right to say it up to and including 26 February 2001, or on any day thereafter up to 12 June 2001 with leave (or indeed, since the appellant evidently felt that the absence of leave was no inhibition, without leave). 19 Can it be said that the appellant has demonstrated an error in the majority reasoning in the 12 June 2001 judgment in that it proceeded on "some misapprehension of the facts"? No. The Further Supplementary Submissions, paragraphs 6-8, do not point to any "misapprehension of the facts". They do not even refer to the detail of the facts, beyond pointing out that the appellant was not armed. 20 Can it be said that the appellant has demonstrated an error in the majority reasoning in the 12 June 2001 judgment in that it proceeded on "some misapprehension of … the relevant law"?

(a) The three High Court appellate decisions relied on by the Crown in the written submissions of 21 February 2001 were not controverted by the appellant on 26 February 2001. The appellant did not say they were wrong, or that they stated the relevant law incompletely. He did not cite any other authorities of his own. The three High Court authorities were quoted in the minority judgment delivered on 12 June 2001. Barr J agreed with the reasons advanced by Smart AJ for applying the proviso, and Smart AJ prefaced those reasons by stating that he did not disagree with the statement appearing in the minority judgment of the principles applicable. The Further Supplementary Submissions do not seek to demonstrate what error there was in the statement of principles. Indeed, paragraph 7(ii) contains quotations from Wilde v R (1988) 164 CLR 365 at 372 which appear in the minority judgment at [39].

(b) The Further Supplementary Submissions refer to three other High Court cases predating the last of those quoted in the minority judgment (namely, Glennon v R (1994) 119 ALR 706 at 710-712). The Further Supplementary Submissions do not explain in what way those cases invalidate either the statements of principle in the minority judgment or the application of them in Smart AJ's judgment.

(c) The further written submissions contend that R v Bozzola [2001] NSWCCA 8 was distinguishable. That case was referred to in the minority judgment at [41] for the proposition that while the right to silence of an accused person is a fundamental right, not every misdirection about the right to silence will be such a fundamental irregularity that no proper trial should be regarded as having taken place. That truism is not a proposition which the Further Supplementary Submissions controvert. Rather, the Further Supplementary Submissions are directed to the proposition that if the correct direction had been given, it was not inevitable that the appellant would have been convicted.

(d) The further written submissions rely on R v Whittaker (1993) 68 A Crim R 476 at 482-484 in support of the contention that "the proviso should not be applied where there has been a misdirection on an important ingredient of the law applicable to the trial". First, the case does not support that proposition. Such a misdirection makes it harder for the proviso to be applied, but not impossible. The court said: "We think it fair to say that there is a diminished inclination in recent times to invoke the proviso (even in otherwise very strong Crown cases) where misdirection has been shown upon an important ingredient of the law applicable to the trial …." The court did not say that the relevant inclination had diminished to the point of non-existence. Secondly, the Court of Criminal Appeal in that case quoted statements in Quartermaine v R (1980) 143 CLR 595 at 600-601 and Wilde v R (1988) 164 CLR 365 at 372-372. The former case was one where the jury was "not instructed as to the essential elements of the charge in fact laid". Gibbs J said: "When a jury has returned a verdict of guilty of a particular crime without having considered whether that crime was committed, the verdict cannot … be sustained by holding that the jury would or should have returned the same verdict if it had considered the proper questions."

R v Whittaker was a case of that character, since there was a misdirection about what in law constituted the crime of manslaughter. So was Quartermaine v R , there having been a misdirection as to the elements of the crime constituted by s 283 of the Criminal Code (WA). That type of case is wholly different from the present, where the jury ex hypothesi was correctly directed about the elements of the relevant crimes (Ground 1 having been rejected). The present case rather concerns a misdirection about the jury's approach to silence - an evidentiary matter. Thirdly, Wilde v R was a case involving another evidentiary matter - an error in admitting similar fact evidence by reason of a refusal to order separate trials in relation to the different items of conduct. In that case the Court of Criminal Appeal applied the proviso and the High Court majority held it was not in error of doing so. In passages which the present appellant did not refer to, directly or by reference, the majority in Wilde v R concluded both that the relevant errors were not of so fundamental a kind as to mean that no proper trial had taken place, and that a reasonable jury would inevitably have convicted if the errors had not been made. That reveals that evidentiary errors do not necessarily mean that no proper trial has taken place and do not necessarily prevent application of the proviso.

(e) The Further Supplementary Submissions refer to R v Frawley (1993) 69 A Crim R 208 at 223-224. Gleeson CJ there said that the proviso should not be applied in that case because though the appellant's chances of an acquittal but for the error that occurred were not to be rated highly, they were not non-existent. That view has no determinative significance in this case: Gleeson CJ's view was correct on the facts of R v Frawley and the view of the majority is, as they perceive the facts of this case, correct in this case. 21 The appellant has completely failed to demonstrate any valid basis for permitting him to reopen the argument. For that reason the order favoured by the majority that the appeal be dismissed should not be disturbed. As an independent ground for the decision that that order should not be disturbed, I hold that even when the Further Supplementary Submissions are taken into consideration as fully as they would have been if they had been advanced at the right time, they do not damage the majority reasoning which has, with respect, considerable strength. 22 I would propose that the Court merely note that the order made on 12 June 2001 is not to be changed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.