Baini v The Queen [2012] HCA 59

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ

MICHEL BAINI APPELLANT

AND

THE QUEEN RESPONDENT

Baini v The Queen [2012] HCA 59 12 December 2012 M87/2012

ORDER

1. Appeal allowed.

2. Set aside paragraphs 5 to 12 of the order of the Court of Appeal of the Supreme Court of Victoria made on 5 October 2011.

3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for further consideration in accordance with the reasons of this Court.

On appeal from the Supreme Court of Victoria

Representation

P F Tehan QC with T R Alexander for the appellant (instructed by Defteros Lawyers)

T Gyorffy SC with E H Ruddle for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Baini v The Queen

Criminal law – Appeal – Error or irregularity in trial – Failure to sever counts – Appellant charged with numerous counts of blackmail of one victim and one count of blackmail of another victim – Trial judge refused application to sever trial of separate count – Court of Appeal held that trial judge erred in refusing application – Whether refusal to sever resulted in "substantial miscarriage of justice" within meaning of s 276 of Criminal Procedure Act 2009 (Vic).

Words and phrases – "substantial miscarriage of justice".

Criminal Procedure Act 2009 (Vic), s 276.

FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ. The issue Section 276(1)(b) of the Criminal Procedure Act 2009 (Vic) ("the Act") obliges the Court of Appeal to allow an appeal against conviction if the appellant satisfies the Court that "as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice". The appellant (together with another accused) was charged with, and found guilty of, numerous counts of blackmailing one victim (Hassan Rifat). The appellant was also charged with, and found guilty of, one count of blackmailing a second victim (Nicholas Srour). All the counts were tried together. It is now accepted that the single count of blackmailing Mr Srour should have been tried separately. Because the counts were tried together, the jury heard both victims describe the demands and the menaces the appellant was alleged to have made to each. The jury thus heard Mr Srour's evidence to the effect that the appellant was "a standover man" and that the appellant had told him that he (the appellant) used standover tactics, bullying and assaulting people in order to get things. It is now accepted that at least some of the evidence of one victim was not relevant in the trial of the count or counts concerning the other victim. The Court of Appeal held that the appellant had shown a substantial miscarriage of justice in respect of the trial of the Srour count because the jury heard "highly prejudicial" evidence about the Rifat counts which was irrelevant to the Srour count. But the Court of Appeal held that the appellant had not shown a substantial miscarriage of justice in respect of the trial of the Rifat counts. This was for two reasons. The first depended upon the jury having been instructed to consider each count separately. The Court of Appeal said that the jury's return of different verdicts on different counts "strongly suggests that [the jury] gave separate consideration to each count, and only found a count established where the evidence of guilt of the particular accused was clear‑cut". Second, the evidence in respect of the Rifat counts was not such as to "bespeak a situation in which the jury should have had a reasonable doubt" of the appellant's guilt and the Court of Appeal "entertain[ed] no such doubt". Did the Court of Appeal apply s 276(1)(b) of the Act correctly? The course of proceedings It is desirable to say a little more about the course of the proceedings leading to this appeal. The appellant and another accused, Badar Arafan, were presented and tried by judge and jury in the County Court of Victoria on a presentment charging the appellant with 16 counts of blackmail, Mr Arafan with 20 counts of blackmail and both the appellant and Mr Arafan together with a further 32 counts of blackmail. All but one of the counts alleged that the victim of the blackmail was Mr Rifat. One count, preferred against only the appellant, alleged that the victim of the blackmail was Mr Srour. At trial, there were directed verdicts of acquittal on some counts and, on others, the jury returned verdicts of not guilty. The jury found the appellant guilty on 36 of the counts, including the Srour count, and the jury found Mr Arafan guilty on 13 of the counts. It is now not disputed that the trial judge (Judge Wood) erred in refusing to sever the trial of the Srour count from the trial of the other counts on the presentment, all of which concerned Mr Rifat. Further, it is now not disputed that, because there was no severance, evidence was led at the trial about the demands and the menaces allegedly made against one victim that was not admissible on the trial of the count or counts relating to the other victim. And it did not appear ultimately to be disputed that the evidence about the Srour count which would not have been admissible in a separate trial of the Rifat counts included Mr Srour's evidence that has already been described: that the appellant was "a standover man" and that the appellant had told him that he (the appellant) used standover tactics, bullying and assaulting people in order to get things. It is accepted that much of the extensive evidence given in support of the numerous Rifat counts was not admissible in the trial of the Srour count. On application for leave to appeal to the Court of Appeal against conviction, that Court (Warren CJ, Nettle and Ashley JJA) granted leave and allowed the appellant's appeal against his conviction on the Srour count, ordered that there be a new trial of the Srour count, and refused the appellant leave to appeal against his convictions on the Rifat counts. The principal reasons of the Court were given by Ashley JA, who concluded that, for the reasons that have been described, the appellant had not shown "that any substantial miscarriage was occasioned to the [appellant] in respect of the Rifat counts by reason of the refusal to sever" the presentment. By special leave, the appellant appeals to this Court alleging that the Court of Appeal should have found that there was a substantial miscarriage of justice in respect of the trial of the Rifat counts. Whether that is so depends upon the proper construction and application of the Act and in particular s 276(1)(b). The Act and appeals against conviction Section 274 of the Act provides: "A person convicted of an offence by an originating court may appeal to the Court of Appeal against the conviction on any ground of appeal if the Court of Appeal gives the person leave to appeal." The County Court in its original jurisdiction is an "originating court". Section 276 of the Act provides: "(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that— (a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or (b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or (c) for any other reason there has been a substantial miscarriage of justice. (2) In any other case, the Court of Appeal must dismiss an appeal under section 274." There was no dispute in this Court that the Rifat counts and the Srour count should have been tried separately. The refusal to sever the trials was "an error or an irregularity in, or in relation to, the trial" of the appellant. The central focus of argument was whether the Court of Appeal should have found that the appellant had satisfied the Court that, as the result of this error or irregularity, "there has been a substantial miscarriage of justice". That is the determinative question in this appeal: should the Court of Appeal have been satisfied that "there has been a substantial miscarriage of justice" within the meaning of s 276(1)(b)? And that question is ultimately one of statutory construction. A question of construction Whether there has been a "substantial miscarriage of justice" within the meaning of s 276(1)(b) requires consideration of the text of the statute. As the Court said in Fleming v The Queen, "[t]he fundamental point is that close attention must be paid to the language" of the relevant provision because "[t]here is no substitute for giving attention to the precise terms" in which that provision is expressed. Paraphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text. These paraphrases do not, and cannot, stand in the place of the words used in the statute. It follows that, contrary to at least some of the argument in this Court, consideration of s 276(1)(b) does not begin with this Court's decision in Weiss v The Queen. Weiss concerned the application of the common form criminal appeal provision derived from the Criminal Appeal Act 1907 (UK). That form of appeal provision did not govern the appeal to the Court of Appeal in this matter; s 276 of the Act did. And while extrinsic material indicates that s 276 was enacted to meet perceived problems with the common form criminal appeal provision, it is to be borne in mind that, to adopt what was said by Brennan J in a different context, s 276 "must be construed according to its own terms rather than by reference to constructions placed on its statutory predecessor". This is not to say that observations made in Weiss about the application of the common form criminal appeal provision cannot also apply to s 276. The same or similar observations may be made about s 276 but only if the statutory text so permits. Against this background, it is convenient to begin the task of construing s 276 first by making three immediate observations about the text of the section and second by noticing how s 276 differs from the common form criminal appeal provision. Three immediate observations about s 276 The first observation to make is that s 276 deals exhaustively with the determination of an appeal under s 274. So much is clear from the statutory text. If the appellant satisfies the Court of Appeal of one or more of the three matters identified in pars (a), (b) and (c) of s 276(1), the Court must allow the appeal against conviction, and s 276(2) provides that in any other case the Court must dismiss the appeal. The Court has no "discretion" to refuse to allow an appeal even if one of the identified grounds is established and likewise it has no "discretion" to allow an appeal even if none of the identified grounds is established. The second observation to make is that the appellant bears the ultimate burden of persuasion. Section 276(1) provides that the appeal must be allowed if the appellant satisfies the Court that one or more of the grounds is established. The third observation to make is that two of the stated grounds (s 276(1)(b) and (c)) expressly require demonstration that "there has been a substantial miscarriage of justice" whereas one ground (s 276(1)(a)) does not. As will be explained below, the separate inclusion of each of pars (a)‑(c) is important. But for the moment, it is sufficient to note that there has surely been a substantial miscarriage of justice if, in the words of par (a), "the verdict of the jury is unreasonable or cannot be supported having regard to the evidence". The absence of the expression "substantial miscarriage of justice" in s 276(1)(a) should not be taken to suggest otherwise. Comparisons with the common form criminal appeal provision It is possible, of course, to draw some comparisons between s 276 and the different terms of the common form criminal appeal provision derived from the Criminal Appeal Act 1907. The appellant in this Court engaged in that comparative task to ask (and answer) whether s 276 "imposes the same statutory task on an appellate court" as the common form criminal appeal provision did and whether "this Court's decision in Weiss [is] applicable" to s 276. But as already explained, comparing a statute with its legislative predecessor (and cases decided under that predecessor) is only a useful exercise if doing so illuminates the actual text of the new provision. Whether or not this comparative task is profitable in other cases, its utility is not evident here. First, to observe that the common form criminal appeal provision provided that an appeal be allowed on demonstration of a "miscarriage of justice" unless there was no "substantial miscarriage of justice", whereas s 276 provides that an appeal be allowed on demonstration of a "substantial miscarriage of justice", does not assist in construing s 276. The observation explains why what was said in Weiss cannot be "applied" to s 276 as if Weiss were decided under s 276. Clearly it was not. But the observation says nothing about the meaning of "substantial miscarriage of justice". Second, there appears to be little, if any, immediate utility in recognising that s 276 imposes the ultimate burden of persuasion on the appellant whereas the common form criminal appeal provision cast some burden (whether evidentiary or persuasive) on the respondent. In few, if any, cases will the placement of the onus of proof affect the content to be given to specific statutory expressions and criteria. And the observation that the ultimate burden of persuasion rests on the appellant, even in combination with the observation (or perhaps it is an assumed conclusion) that statute and the common law recognise a presumption of innocence, says nothing about the content to be given to the expression "substantial miscarriage of justice". In particular, the appellant's broad statements that "it would be unjust for the appellant ... to be required to persuade the court that he or she was not guilty" are unhelpful because they do not grapple closely with the statutory text. As a practical matter, few, if any, appeals governed by s 276 will turn upon which party bears the onus of proof. It is not to be supposed that notions of there being no case to answer at trial for want of proof of an element of an offence intrude into the determination of an appeal under s 274. Nor is it to be supposed that the respondent (whether a Director of Public Prosecutions or some other prosecuting authority) would not place all relevant arguments before the Court of Appeal. Third, recognising that the question whether "there has been a substantial miscarriage of justice" is different from the question whether "no substantial miscarriage of justice has actually occurred" invites identification and consideration of what follows from the differences. But that task distracts attention from the central inquiry, which is, and must remain, what do s 276(1)(b) and (c) mean when they refer to "a substantial miscarriage of justice"? It is to that question that these reasons now turn. A substantial miscarriage of justice Section 276 must be read recognising that miscarriages of justice may occur in many circumstances and may take many forms. As s 276(1)(b) contemplates, it will be possible sometimes to describe the cause of complaint as "an error or an irregularity in, or in relation to, the trial". That is a description which is apt to encompass any departure from trial according to law. But as s 276(1)(c) shows by its reference to "any other reason" (emphasis added), the description contemplated in par (b) is not exhaustive. When read together, pars (b) and (c) encompass any and every form of substantial miscarriage of justice. Yet the ultimate question will remain the same: has there been "a substantial miscarriage of justice"? No single universally applicable description can be given for what is a "substantial miscarriage of justice" for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Second, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Third, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a "substantial miscarriage of justice" ultimately requires a judgment to be made. The singling out, in s 276(1)(a), of cases in which the verdict of the jury is unreasonable or cannot be supported having regard to the evidence is important. Its separate inclusion in the section indicates that pars (b) and (c) (and in particular the question whether there has been a substantial miscarriage of justice) cannot be confined to cases in which the Court of Appeal is satisfied that it was not open to the jury to convict the appellant. Paragraphs (b) and (c) must be read as dealing with more than the case where the Court of Appeal is satisfied that the evidence which was properly before the jury did not permit the conclusion that guilt was established beyond reasonable doubt because that sort of case is dealt with by s 276(1)(a). It follows that a "substantial miscarriage of justice" encompasses not only cases identified by reference to inaccuracy of result but also cases identified by reference to departure from process even if it can be shown that the verdict was open or it is not possible to conclude whether the verdict was open. An appellant's demonstration that there has been "a substantial miscarriage of justice" for the purposes of s 276(1)(b) and (c) may be affected by the strength of the prosecution case at trial. In some cases, it may be possible for an appellate court to conclude that there has not been "a substantial miscarriage of justice" because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged. But several points must be made about this possibility. First, in many cases of the kinds contemplated by s 276(1)(b) and (c), an appellate court will not be in a position to decide whether the appellant must have been convicted if the error had not been made. The nature of the error, irregularity or cause of complaint contemplated by those paragraphs will often prevent that conclusion from being reached by an appellate court on the record of the trial given the "natural limitations" that attend the appellate task. Second, and contrary to what the appellant's submissions sometimes suggested, the possibility that the Court of Appeal may conclude that no "substantial miscarriage of justice" occurred because a verdict of guilty, on the evidence properly admissible at trial, was inevitable neither reintroduces the proviso to the common form criminal appeal provision nor imposes on an appellant some onus of proving his or her innocence. To recognise that possibility does no more than acknowledge that the Court of Appeal's satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been "a substantial miscarriage of justice". The Court's satisfaction that a guilty verdict was inevitable will not in every case conclude the issue about whether there has been a substantial miscarriage of justice but it is a matter to be taken into account in answering the question posed by s 276(1)(b) and (c). If it is submitted that a guilty verdict was inevitable, an appellant need not prove his or her innocence to meet the point. An appellant will meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt. As a practical matter, it will then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant's conviction was inevitable. Third, the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. (Whether the verdict was open is the question presented by s 276(1)(a).) If it is said that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial with "the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record". That the jury returned a guilty verdict may, in appropriate cases, bear upon the question. But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made. This understanding of s 276 accommodates fundamental tenets of the criminal justice system in Australia. It recognises that the prescribed mode of trial was trial by jury. It does so by 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. It also recognises that an accused's guilt must be established by the prosecution at trial beyond reasonable doubt. It is not to be established by speculation about what a jury, this jury, or a reasonable jury might have done but for the error. Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a "substantial miscarriage of justice" if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal. Extrinsic material The above conclusions follow from the text of the Act but they are reinforced by reference to extrinsic material related to the Act. In the course of the second reading speech for the Bill which became the Act, the Attorney‑General said that the "new approach" adopted in the provisions that became s 276 "will result in appeals being allowed when the problem could have reasonably made a difference to the trial outcome; or if the error or irregularity was of a fundamental kind depriving the appellant of a fair trial" (emphasis added). This statement reinforces the view which follows from the statutory language: "a substantial miscarriage of justice" encompasses not only errors that did have or may have had an effect on the result of the trial but also departures from proper trial processes irrespective of their impact on the trial outcome. The second reading speech is useful in so far as it confirms that s 276 takes into account questions of result and questions of process, but it provides no further assistance than this. In particular, it may be doubted that the second reading speech contains an exhaustive description of the effect of what became s 276 because it left unexplained the references to "reasonably made a difference" and error or irregularity of a "fundamental" kind. And even if these comments in the second reading speech were to be taken as intended to be an exhaustive description, it is a description that could not and must not be adopted as a substitute for the statutory language. To ask when an error "could have reasonably made a difference", or to ask whether an error or irregularity is "fundamental", is simply to ask in different language whether there has been a "substantial miscarriage of justice". But it is the statutory question which must be asked and answered. Applying s 276(1)(b) in this case The error or irregularity at the appellant's trial was the refusal to sever the trial of the Rifat counts from the trial of the Srour count. The consequence of that error or irregularity was that the jury heard prejudicial evidence about the appellant which would not have been admissible if the trials had been severed. On the trial of the Srour count, the jury heard all of the evidence of repeated demands with menaces made of Mr Rifat. On the trial of the Rifat counts, the jury heard Mr Srour's evidence that the appellant was a standover man and that the appellant had told him, in effect, that blackmail was how he (the appellant) got things. Unless this error or irregularity had no bearing upon the result of the trial, there was thus a "substantial miscarriage of justice" because the jury may have reached different conclusions had the record of evidence been different. The Court of Appeal ordered a retrial of the Srour count but it refused the appellant leave to appeal against the convictions recorded on the Rifat counts on the footing that there was not shown to have been a substantial miscarriage of justice. In refusing leave, the Court made essentially two points. First, the jury had been given a direction to consider each count separately by reference only to the evidence relating to that count and their return of different verdicts on different counts suggested that they had followed this direction. This the Court of Appeal concluded outweighed what it described as the "over‑dramatised" effect ascribed in the course of argument in that Court to the evidence given by Mr Srour. And second, on the Court's review of the record of the trial, the case against the appellant on the Rifat counts was said to be "very strong" and "overwhelming" because Mr Rifat's evidence "had credibility" and because it was "grossly improbable" that Mr Rifat would have willingly given the benefits he gave to the appellant and Mr Arafan. The respondent supported this reasoning in this Court. But neither point demonstrates that the (now undisputed) failure to sever the trial of the Srour count from the trial of the Rifat counts did not result in a "substantial miscarriage of justice" with respect to the trial of the Rifat counts. As to the first point, that the jury were given a separate consideration direction (whether or not that direction is properly characterised as a "strong" direction) does not deny that they had before them evidence which they should not have had and which may have influenced their deliberations. The Court of Appeal was therefore correct to conclude, as it did, that the separate consideration direction did not prevent there being a substantial miscarriage of justice in respect of the trial of the Srour count. The same conclusion must be reached about the Rifat counts. As to the second point, it is of the utmost importance to recognise that the Court of Appeal's observations about the state of the evidence at trial were made in the course of considering the appellant's argument that the verdicts were unreasonable or could not be supported having regard to the evidence. It was in that context that Ashley JA said: "the criticisms which [the appellant's] counsel made as to the state of the evidence do not bespeak a situation in which the jury should have had a reasonable doubt of the [appellant's] guilt. Having considered the evidence, I entertain no such doubt. ... [I]n my view the jury was in [sic] entitled to conclude, as I do, that the Crown case was overwhelming." (emphasis added) The point made by Ashley JA was directed to the ground raised: was the verdict open to the jury? And the conclusion which he reached was expressed in terms apposite to that ground: the jury should not have had a reasonable doubt and they were entitled to return the verdicts which they did. But the reasoning at no time considered, as s 276(1)(b) and (c) required, whether the jury's verdicts were not only open but inevitable. Conclusion and orders The appellant having demonstrated to the Court of Appeal that evidence was received at the trial of the Rifat counts that should not have been admitted, it was well open to the Court of Appeal to be satisfied that there was a substantial miscarriage of justice in respect of those counts. Whether, having regard to the whole of the evidence at trial, the Court of Appeal could conclude that the verdicts the jury returned in respect of the Rifat counts were inevitable (because the jury could not have entertained a reasonable doubt) is a question which has not been considered by that Court. It cannot be decided by this Court because it does not have the full record of the trial available to it. Because the Court of Appeal did not examine whether the appellant's convictions on the Rifat counts were inevitable, the matter should be remitted to the Court of Appeal for it to consider again whether there was "a substantial miscarriage of justice" in respect of the Rifat counts. The appeal to this Court should be allowed and the matter remitted to the Court of Appeal for its further consideration.