Allen v The Queen

[1994] HCATrans 404

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bll of 1994

B e t w e e n -

TIMOTHY FRANCIS ALLEN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

McHUGH J

Allen 1 30/6/94

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 30 JUNE 1994, AT 10.31 AM

Copyright in the High Court of Australia

MR S.E. HERBERT, OC:  May it please the Court, I appear with

MR A.J. GLYNN for the applicant. (instructed by the Legal Aid Office (Queensland))

MR B.J. BUTLER: If it please the Court, I appear with my

learned friend, MR J.R. HUNTER, for the respondent.

(instructed by D. Field, Solicitor to the Director

of Prosecutions (Queensland))

BRENNAN J: Yes, Mr Herbert.

MR HERBERT: 

Your Honours, it is perhaps correct to say that in any case of dismissal on appeal by a Court of

Appeal by way of application of a proviso, that the

true question for this Court is whether the proviso

has been correctly applied.  But that is only the

ultimate question, and in determination of the

correct answer to that question, here, it is
contended that a substantial question of law arises

and needs to be resolved.

We accept that we must meet the tests referred to in Glennon's case and it must be possible for us

to say that there was an irregularity of such a

kind that it went to the root of the proceedings
such that the accused did not have a proper trial.

Here, there was no issue as to the presence of

the accused at the time of the killing. There was
no issue as to the presence of the accused
immediately before. There was no issue as to the

applicant's presence immediately after, nor that

the applicant, plainly, assisted the man that he
said committed the murder, Bradford, after the

killing.

DAWSON J: 

And took a division of the proceeds.

MR HERBERT: 

And took a division of the proceeds. We made

those things clear. With that evidence against

him, it is our respectful submission that a

conviction for murder was almost inevitable unless

the jury could either accept his evidence or be

left in some reasonable doubt that it might

possibly be true. Accordingly, any direction which

went to damage the way in which the jury came to

consider his evidence, any direction which allowed

the jury to consider the applicant's evidence in a

way which was not correct or inappropriate, we

therefore submit goes to, in this particular case,

the root of the trial and leads to the conclusion

that there was no proper trial.

For the proposition, that is that the judge's

directions caused or could have caused the jury to

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wrongly approach his evidence, we must refer

Your Honours to the summing up. Now, the summing

up is discursive and contains a number of different

directions on the topic.

Might we begin at page 139 of the record where

the court below sets out some parts of that summing

up. At approximately line 19 the quotation from

the summing up begins in this way:

you might say to yourself -

in considering the evidence of the accused -

goodness, of course he would give that

evidence exculpating himself, and the Crown

Prosecutor in the course of his address to

you, well ..... he would be convicted - clearly

convicted - and therefore what would you

expect.

It is very much along the lines of, I suppose, what

Christine Keeler said:	"He would say that,
wouldn't he?"

McHUGH J: Mandy Rice-Davies, I think - - -

MR HERBERT:  Yes, perhaps the other one. What did Christine

Keeler say?

DAWSON J: Not that.

MR HERBERT: Well, it is not like what she said but our

Mr Profumo, none the less, was stuck with this

difficulty, that His Honour went on to say:

I must tell you this, as a matter of common

sense you always look at the interest that a

witness may have in the outcome of proceedings

when you are weighing up the reliability of

his evidence.

"You always":	it is plainly in breach of what this
Court said in	Robinson. Then His Honour went on
not merely to	permit the jury to contemplate that
the applicant	might have an interest but he
directed them	that he did.

In this case the accused, of course, has an

interest in not being convicted -

His Honour was then to identify the fact that:

all people charged with criminal offences have

an interest -

and went on to say:

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it would be a terrible state of affairs if you

said, well, because that person has got an

interest in not being convicted I am not going

to take too much notice of what he says when

he gives evidence on oath.	So you have to
adopt a sensible approach -

which the jury could read almost any way it chose. you always look at the interest", it could well
It might read it as being a reference back to

have been that. But, anyway, a direction:

to adopt a sensible approach and you keep in

mind, of course, the accused person has an

interest in not being convicted -

"keep it in mind" -

it does not mean that therefore you take with

a grain of salt what he says. That would be

an appalling state of affairs. It would

simply mean that if a person was charged with

an offence he would start off well behind

scratch in giving evidence showing he was not

guilty of the offence, and, as has been

pointed out to you again and again, he is

presumed innocent -

Now, Your Honours, the difficulty with all of that

is that it leave untouched the original directions

that they always look at the interest in assessing

reliability.

His Honour returned to this topic after these

directions which we respectfully submit to be

utterly confusing but, none the less, directions

which left available an incorrect approach and,

indeed, required it. And His Honour went on to say

this at line 25, page 140 of this record:

Now, the accused man, as I mentioned then - I

restate now in case there is any doubt about

it - the accused man is on a very serious

charge and he has given evidence which

exculpates him ..... Now, I simply draw

attention to the fact that he, of course, as

all accused people have, has an interest in

not being convicted.

It just does not stop. It keeps going on, and on, and on.

There is nothing very extraordinary about that, and you accept that as a matter of

common sense -

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and then His Honour says:

if he gives evidence or she gives evidence in

not being convicted you don't for that reason

discount it.	They do not start behind
scratch.

Now, that might be regarded as some attempt to

comply with the principle in Robinson and Stafford.

But His Honour returned:

You simply, as a matter of common sense, keep

in mind that, in fact, they are giving

evidence with a view to establishing - or at

least with a view to persuading you against

conviction.

Then, again, an attempt to comply:

does not mean that an accused person's

evidence must be scrutinized and looked at
under a magnifying glass more carefully and
with more hesitation than you look at the

evidence of anybody else.

Then His Honour tells the jury that everybody

charged has a "right to give evidence". His Honour

went on again repeating "That would be anappalling

state of affairs", and so on. That is ·not

appropriate. And then at line 50:

I simply direct your attention to the fact that you must look at his evidence carefully

and if at the end of the day you have a

reasonable doubt as to his guilt based upon

his evidence, not just alone -

and so on. Now, it is not finished quite.

His Honour, at the top of page 141, went on to say:

I said that to you because the Crown has

described his evidence as a fairy story and I

have taken you to various aspects of that

evidence and so you will consider it. It
simply means that you look at that evidence

carefully and you certainly do not disregard

it simply because he is giving evidence that

would exculpate him -

Your Honours, the submission is this: those

directions, taken as a whole, leave open - we would

actually say require the jury to approach the

accused's evidence with matters in mind that they

ought not have in mind, that is, that he has an

interest in giving evidence in exculpating himself,

a very serious interest, as it was perhaps put

slightly differently and that it leaves open the

Allen 30/6/94

likelihood that the jury took these directions to

mean that the accused, the applicant - that his

evidence had to be looked at in some way different.

Despite the fact that His Honour gave

directions about the presumption of innocence, how

unfortunate it would be if that were ignored,

His Honour never expressly withdrew those

directions that they must keep his interest in

mind. Those directions were never withdrawn. What

the jury, in the end, could make of this is

difficult to know but it is perfectly possible that

the directions in the end were taken to mean, "You

do approach the evidence of the accused always

keeping in mind the fact that it is given with a

view to acquittal."

BRENNAN J:	What is the special leave point?
MR HERBERT:	The special leave point is this, that

directions that a jury must, must take into account

the interest, are in breach of principle and a mere

direction which we say occurred here, a mere

direction that there was a presumption of

innocence, in effect, is insufficient to save such

an erroneous direction.

The courts of Queensland, as Your Honours will

see from the history of these cases in Queensland,

beginning with Robinson, there has been what we

would respectfully submit to be perhaps some

reluctance to fully apply what this Court said in

Robinson, and Stafford's case became necessary

because the Court of Appeal of Queensland

reinterpreted the language of Robinson's case.

That interpretation was held wrong. In Stafford

there was, I might say, a clear reminder but the

Court of Appeal still permits convictions to stand

when directions have been given not merely

permitting a jury to contemplate the interest but

requiring it and it should stop. Those are our

submissions.

BRENNAN J:  We need not trouble you, Mr Butler.

The question which the applicant seeks to

agitate if special leave be granted in this case is

whether the direction given by the trial judge was

contrary to the principles stated by this Court in

Robinson v The Queen {No 2] (1991) 65 ALJR 644, and

Stafford v The Queen (1993) 67 ALJR 510.

It is clear that the directions were given in

terms which were thought appropriate having regard

to the submissions made by counsel for the Crown in

his final address to the jury. The trial judge

must tailor his or her directions according to the

Allen 6 30/6/94

issues in, and conduct of, a trial. In this case

there is not sufficient reason to doubt that the

Court of Criminal Appeal was right in holding that:

"the overall effect of what was being said,

and undoubtedly the message which the jury

would have received from all that was said,

was that the accused's evidence should be

treated as the evidence of any other witness;

it should not be discounted in any way because

of the fact that he was the accused person,

and it ought not to be scrutinized in any more

detail because of that consideration."

Therefore, the case is not one which warrants the grant of special leave. Accordingly, special leave

will be refused.

AT 10.44 AM THE MATTER WAS ADJOURNED SINE DIE

Allen 30/6/94