R v Gust [2000] NSWCCA 287

New South Wales Court of Criminal Appeal

CITATION : R v Gust [2000] NSWCCA 287 FILE NUMBER(S) : CCA 60651/97 HEARING DATE(S) : 4 August 2000 JUDGMENT DATE : 4 August 2000

PARTIES : Colin Alfred Gust (applicant) Crown (respondent) JUDGMENT OF : Dunford J at 1 & 22; Hidden J at 20; Smart AJ at 21

COUNSEL : TA Game SC (applicant) W Dawe QC (respondent) SOLICITORS : Legal Aid Commission (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - appeal - application to re-open appeal - denial of procedural fairness. LEGISLATION CITED : Criminal Appeal Rules 4 & 6. Grierson v The King (1938) 60 CLR 431 Postiglione v The Queen (1997) 189 CLR 295 CASES CITED: Pantorno v The Queen (1989) 166 CLR 466 R v Lloyd Saxon (1998) 101 A CRim R 71 R v McNamara (No. 2) 1997 1 VR 257 (1996) 86 A Crim R 339 DECISION : Application dismissed.

IN THE COURT OF CRIMINAL APPEAL

60651/97

DUNFORD J HIDDEN J SMART AJ FFriday, 4 AUGUST 2000 R v Colin Alfred GUST (No. 2) JUDGMENT 1 DUNFORD J: The applicant, Colin Alfred Gust, was convicted in the District Court at East Maitland following his trial before Acting Judge Nader QC and a jury on a charge of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. 2 He appealed to this Court on a number of grounds and also applied for leave to appeal against the sentence imposed following that conviction. 3 The appeal was heard by this Court as presently constituted on 29 July 1999 and judgment was delivered on 22 October 1999. The Court by majority dismissed his appeal against the conviction, and granted leave to appeal against sentence but dismissed the appeal. The judgment has since been perfected, the records indicating that that occurred on 3 November 1999. The applicant now seeks leave to re-open the hearing of the appeal on the ground that he was denied procedural fairness at the hearing and in the dismissal of the appeal. 4 It has been clearly established since Grierson v The King (1938) 60 CLR 431 that when this Court has heard an appeal on its merits and given its decision, the appeal cannot be re-opened. This principle has been reasserted by the High Court as recently as 1997 in Postiglione v The Queen (1997) 189 CLR 295 at 300, 315, 326; although it would appear that it is still open to this Court to entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected: Pantorno v The Queen (1989) 166 CLR 466, see Postiglione at 300, 327. 5 In R v Lloyd Saxon (1998) 101 A Crim R 71 this Court reaffirmed the authority of Grierson but noted some exceptions to the principle including "the discretion to look at the matter afresh where there has been a denial of procedural fairness in a Court of Criminal Appeal" and Pantorno and R v McNamara (No. 2) 1997 1 VR 257 (1996) 86 A Crim R 339 were cited. 6 Accordingly, I am satisfied that this Court has power to grant the application if the applicant can show that he was in fact denied procedural fairness in the hearing and determination of his appeal. 7 In the judgment delivered on 22 October, Smart AJ and myself found none of the grounds of appeal established. Hidden J, whilst agreeing with us on some grounds, would have upheld the appeal and ordered a new trial on the ground that the learned trial judge was in error in giving the jury directions about recklessness as to consent in accordance with s 61R(1) Crimes Act 1900, and in failing to explain to the jury how such directions related to the evidence in the trial. Smart AJ and I took a different view. Smart AJ considered that, having regard to the way the evidence unfolded and because of the limited materials available, it was hard to rule out recklessness completely; but in any event even if recklessness was incorrectly left to the jury this did not cause a miscarriage of justice. I took the view that even if the directions were not necessary that did not entitle the applicant to a new trial. 8 Like all other grounds of appeal argued, this ground required leave because of the requirements of Rule 4 of the Criminal Appeal Rules. Not only was no objection taken to the directions but counsel appearing for the applicant at the trial, who was different to counsel on the appeal and different to counsel who has appeared today, had expressly acquiesced in the giving of the directions and their terms. 9 As pointed out by Smart AJ in his judgment of 22 October 1999 at paras [67] - [68], the trial judge furnished counsel with draft directions prior to their addresses and there was no objection. This was followed by discussion between counsel and the judge as to the use to be made of the complainant's evidence. Subsequently his Honour summed up, presumably in accordance with the draft directions to which counsel had previously agreed. At the conclusion of the summing up both counsel expressed themselves as satisfied with the directions given. 10 Subsequently, a note was received from the jury requesting further directions in relation to recklessness. His Honour gave further directions in relation to that and another matter, at the conclusion of which both counsel again expressed their satisfaction with the directions which had been given. 11 Both Smart AJ and myself referred in our judgments to the fact that as the final addresses of both counsel were not before us we had no way of knowing whether anything about recklessness had been touched on in such addresses, but this was not fundamental to our respective reasons. 12 It is now submitted that there was a denial of procedural fairness because the Court did not give counsel notice, and counsel could not have anticipated that the Court might act upon what might have been said or not said in the addresses. 13 In his affidavit sworn in support of this application, counsel who appeared for the applicant on the hearing of the appeal said that when he received the Crown submissions he did not believe recklessness had been an issue at the trial and he asked for a transcript of the Crown's address to reassure himself of this. Such transcript was obtained and his belief confirmed. The appeal was not reached when listed for hearing on 4 March 1999 and was re-listed on 29 July when counsel did not turn his mind again to the issue of the trial addresses. We have now been provided with copies of such addresses and in fact the issue of recklessness in relation to consent was not referred to. 14 This is a case where as a consequence of Rule 4 the appellant needed leave to argue the ground, and it was therefore up to appellant's counsel to put to the Court all relevant material and submissions. His submission was that the direction should not have been given because recklessness was not an issue in the trial, and one way of demonstrating this would have been to produce the transcript of the Crown's final address containing no reference to that issue. What the present submission really amounts to is that counsel for the appellant overlooked some material which he could have used to support a submission which he was making. This is not intended as a criticism of counsel, he had a lot of issues to deal with and my recollection is that he conducted the appeal with his usual high degree of competency and ability. 15 Our attention has been directed to Rule 6 of the Criminal Appeal Rules which provides, inter alia, that the addresses shall not be included in the transcript unless the trial judge so orders, but that does not mean that if counsel had sought to rely on it and had produced it, it would not have been received by this Court. 16 The fact that the Court did not draw his attention to the absence of a transcript of the addresses specifically in relation to the ground relating to the recklessness direction, did not in my view amount to a denial of procedural fairness or natural justice. The Court had no way of knowing that which counsel knew of but overlooked, namely that he did have available to him a transcript of the Crown's address. In any event I did during the Crown's submissions refer to the apparent non-availability of the transcript of the addresses (see appeal transcript at p 24), but it must be conceded that that was in the context of submissions relating to another of the grounds of appeal. 17 I know of no authority, and we were not referred to any, which suggests that a judge must draw counsel's attention to every point or subsidiary consideration which he or she may later wish to refer to in formulating reasons for judgment. A Court is under no duty to a party to advise him how to present his case, the Court's duty is to give him a reasonable opportunity to present his case, and the responsibility of counsel for the conduct of the case cannot be assumed by the Court, for that would compromise its evenhandedness: Pantorno v The Queen at 472-3. 18 In any event, the absence of any reference to recklessness in the address would have made no difference to my judgment, the ratio of which appears in paras [5] and [6]. The reference to the absence of the transcript of addresses in para [4] was from my point of view only a passing remark. 19 Accordingly, I am not satisfied that there was any denial of procedural fairness in the present case and accordingly the application should be dismissed. 20 HIDDEN J: I agree. 21 SMART AJ: I also agree. 22 DUNFORD J: The order of the Court will therefore be as I have indicated. oOo