KIEFEL CJ, GORDON, EDELMAN, STEWARD AND GLEESON JJ
Matter No M44/2022
DANNY AWAD APPELLANT
AND
THE QUEEN RESPONDENT
Matter No M45/2022
JOHN MICHAEL TAMBAKAKIS APPELLANT
AND
THE QUEEN RESPONDENT
Awad v The Queen Tambakakis v The Queen
[2022] HCA 36
Date of Hearing: 13 September 2022 Date of Judgment: 9 November 2022
M44/2022 & M45/2022
ORDER
In each matter:
1. Appeal allowed.
2. Set aside paragraph 2 of the orders made by the Court of Appeal of the Supreme Court of Victoria dated 18 October 2021 dismissing the appeal and, in its place, order that:
(a)the appeal against conviction be allowed;
(b)the appellant's conviction be set aside; and
(c) there be a new trial.
On appeal from the Supreme Court of Victoria
Representation
B W Walker SC with O P Holdenson KC for the appellant in M44/2022 (instructed by Milides Lawyers)
D A Dann KC with P J Smallwood for the appellant in M45/2022 (instructed by Stephen Andrianakis and Associates)
P J Doyle SC with C J Tran for the respondent in both matters (instructed by Commonwealth Director of Public Prosecutions)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Awad v The Queen Tambakakis v The Queen
Criminal Practice – Appeal – Error or irregularity in trial – Directions to jury – Where credibility of one accused giving evidence central to both trials – Where trial judge directed jury that innocent person can do nothing more than give evidence – Where trial judge directed jury that guilty person may give evidence in hope or belief they will more likely be believed – Where directions prohibited by s 44J of Jury Directions Act 2015 (Vic) – Whether misdirection constituted substantial miscarriage of justice.
Words and phrases – "charge", "conviction was inevitable", "credibility", "deflect the jury from its fundamental task", "direction", "essential to a fair trial", "fundamental error", "jury", "misdirection", "motivation to give evidence", "natural limitations", "onus of proof", "presumption of innocence", "prohibited direction", "serious departure from the prescribed processes for trial", "substantial miscarriage of justice".
KIEFEL CJ AND GLEESON J. Following a trial in the County Court of Victoria, the appellants were each convicted of one charge of attempting to possess a commercial quantity of an unlawfully imported border‑controlled drug[1], namely cocaine. These appeals concern a misdirection by the trial judge. The misdirection was as to the reason why Mr Tambakakis may have chosen to give evidence. It is a direction which s 44J(b) of the Jury Directions Act 2015 (Vic) states must not be made. There is no issue that the direction was contrary to law. The question on the appeals is whether the direction amounts to a substantial miscarriage of justice from which it would follow that the appeals from conviction should have been allowed by the Court of Appeal of the Supreme Court of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Awad v The Queen
Sign in free to access the full text
Details
AGLC
Awad v The Queen [2022] HCA 36
Case
[2022] HCA 36
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard appeals from Mr Awad and Mr Tambakakis, who had been convicted in the County Court of Victoria of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug. The appeals concerned a misdirection given by the trial judge to the jury regarding the reasons why Mr Tambakakis, one of the appellants, had chosen to give evidence in his defence. This direction was alleged to be contrary to section 44J of the *Jury Directions Act 2015* (Vic).
The central legal issue before the High Court was whether the trial judge's misdirection constituted a substantial miscarriage of justice, thereby warranting the allowance of the appeals against conviction. Specifically, the court had to determine if the prohibited direction, which suggested that an innocent person can do nothing more than give evidence while a guilty person might do so in the hope of being believed, had the capacity to improperly influence the jury's assessment of Mr Tambakakis' credibility and, consequently, the outcome of the trials.
The High Court reasoned that the misdirection, prohibited by s 44J(b) of the *Jury Directions Act 2015* (Vic), had the potential to deflect the jury from its fundamental task of assessing evidence. Given the critical importance of Mr Tambakakis' credibility to both trials, the prohibited direction was capable of affecting the result. The Court found that the Court of Appeal had erred in not considering the whole of the record, including the issues surrounding Mr Tambakakis' credibility and the inherent limitations of an appellate court in assessing witness demeanour. Consequently, the High Court concluded that a substantial miscarriage of justice had occurred.
In each matter, the High Court allowed the appeal, set aside the orders of the Court of Appeal dismissing the appeals against conviction, and ordered that the convictions be set aside and that there be a new trial.
Orders
Orders of the court
In each matter:
1. Appeal allowed.
2. Set aside paragraph 2 of the orders made by the Court of Appeal of the Supreme Court of Victoria dated 18 October 2021 dismissing the appeal and, in its place, order that:
(a) the appeal against conviction be allowed;
(b) the appellant's conviction be set aside; and
(c) there be a new trial.
Background
Background to the litigation
AND Following a trial in the County Court of Victoria, the appellants were each convicted of one charge of attempting to possess a commercial quantity of an unlawfully imported border‑controlled drug[1], namely cocaine. These appeals concern a misdirection by the trial judge. The misdirection was as to the reason why Mr Tambakakis may have chosen to give evidence. It is a direction which s 44J(b) of the Jury Directions Act 2015 (Vic) states must not be made. There is no issue that the direction was contrary to law. The question on the appeals is whether the direction amounts to a substantial miscarriage of justice from which it would follow that the appeals from conviction should have been allowed by the Court of Appeal of the Supreme Court of Victoria.[1]Criminal Code (Cth), ss 11.1(1) and 307.5(1).Background Australian Border Force officers intercepted a consignment of printers which were found to contain 22.4 kilograms of cocaine, 15.456 kilograms of which was pure cocaine. A commercial quantity is two kilograms. An inert substance was substituted for the cocaine, and a listening device and a tracking device were placed within the consignment. Surveillance of the delivery of the consignment was undertaken. So far as concerned Mr Tambakakis, the evidence showed that he collected the consignment and stored it overnight in the yard of premises in which he conducted a business. The following evening the consignment was moved to the residential premises of another co‑accused. Mr Tambakakis delivered a white Kia van to those premises and the van was later used to transport the consignment to a warehouse which he had leased in a false name. Mr Awad picked up Mr Tambakakis after the van was delivered and they drove to Mr Tambakakis' apartment. The two later travelled together to a carpark in the vicinity of the warehouse and proceeded on foot, though separately, towards it. At a certain point Mr Tambakakis entered the van and helped unload the consignment at the warehouse. When the van was unloaded, Mr Tambakakis drove it out of the warehouse and parked at a carpark. He and Mr Awad were then seen walking to the carpark where Mr Awad's car was parked and drove away. Mr Tambakakis and Mr Awad were not charged with any conspiracy to commit an offence. Mr Awad was not charged with having aided, abetted, counselled or procured the commission of an offence by Mr Tambakakis. The prosecution case that Mr Awad was in joint possession of the substance in the consignment depended upon him having entered the van with Mr Tambakakis. But Mr Tambakakis gave evidence that, although it had been planned that both he and Mr Awad would enter the van and travel in it to the warehouse, Mr Awad did not do so. And there was no CCTV footage which placed Mr Awad there. Mr Tambakakis also gave evidence in his own defence. It was to the effect that another person organised the importation and that he, Mr Tambakakis, believed the drugs were steroid tablets. They had previously imported such drugs. This defence involved confessing to involvement in the illegal importation of steroids but not to the importation of a border‑controlled drug.
Evidence
Evidence Before The Court
Sections 44H to 44K were inserted into the Jury Directions Act with operation from 1 October 2017. Section 44J is in the following terms:"Prohibited directions in relation to evidence of an accusedThe trial judge must not direct the jury about any of the following matters in relation to the evidence of an accused – (a)whether the accused is under more stress than any other witness; (b)that the accused gave evidence because – (i)a guilty person who gives evidence will more likely be believed; or(ii)an innocent person can do nothing more than give evidence.NoteThis section prohibits the trial judge from giving directions to the jury about particular matters. This does not limit the obligation of the trial judge to refer the jury to the way in which the prosecution and the accused put their cases in relation to the issues in the trial – see section 65." Section 44K provides:"Abolition of common law rules(1)Any rule of common law under which a trial judge is prohibited from directing the jury on the interest a witness or an accused may have in the outcome of a trial is abolished.(2)Any rule of common law under which a trial judge is required or permitted to direct the jury about the matters referred to in section 44J in relation to the evidence of an accused is abolished.Notes1Subsection (1) abolishes the rule attributed to Robinson v R [1991] HCA 38; (1994) 180 CLR 531.2Subsection (2) abolishes directions based on – • R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593; and • R v McMahon [2004] VSCA 64; (2004) 8 VR 101; and• R v Buckley [2004] VSCA 185; (2004) 10 VR 215.3Section 4 applies generally to override any rule of law or practice to the contrary of this Act." It will be observed that the trial judge gave each of the directions to which s 44J(a), (b)(i) and (b)(ii) refer. The direction which the appellants contend gave rise to a substantial miscarriage of justice[2] is that referred to in s 44J(b)(i) and is highlighted in the directions set out above.[2]Criminal Procedure Act 2009 (Vic), s 276(1)(b)-(c). Prior to its enactment, directions of the kind prohibited by s 44J were given in criminal trials in Victoria. The cases noted to s 44K are examples of such cases. But in his dissenting judgment in the Court of Appeal in this case[3], Priest JA observed that prior to the promulgation of s 44J(b), not every trial judge in Victoria gave the directions, since not every judge was satisfied that they were not offensive to principle. The directions had not gained currency or approval outside that State.[3]Awad v The Queen (2021) 291 A Crim R 303 at 320-321 [64]. A report by the Criminal Law Review of the Department of Justice & Regulation[4] described the directions as "unhelpful" and "problematic". It said[5]:"The direction on assessing evidence (i.e. a guilty person may tough out cross‑examination, but there's nothing more an innocent person may do) contains two competing propositions that arguably neutralise each other. The competing nature of the directions may confuse the jury and have the unintended consequence of focusing attention on the motivation of an accused to give particular evidence given their interest in the outcome of a trial."[4]Victoria, Criminal Law Review, Department of Justice & Regulation, Jury Directions: A Jury-Centric Approach Part 2 (2017) at 13.[5]Victoria, Criminal Law Review, Department of Justice & Regulation, Jury Directions: A Jury-Centric Approach Part 2 (2017) at 12.
Decision
Reasons for decision
KIEFEL CJ
GLEESON J
(dissent)
GORDON AND EDELMAN JJ
(dissent)
STEWARD J
In the context of the trials of Mr Awad and Mr Tambakakis, therefore, with the importance of the jury's assessment of Mr Tambakakis' credibility, the prohibited direction had the capacity to deflect the jury from their task and thus the potential to affect the result of the trials. The Court of Appeal could only have concluded that conviction was inevitable by assessing the prohibited direction in light of the whole of the record, including all of the issues related to Mr Tambakakis' credibility and any natural limitations attending the appellate task which may have prevented such a conclusion. It may be that the natural limitations arising from the Court of Appeal not having seen Mr Tambakakis give evidence would have prevented such a conclusion. But since the Crown no longer seeks remittal of the appeals to determine the inevitability of the convictions, and since the parties made no submissions on the substance of that issue, this Court should not attempt to determine it.Conclusion In circumstances in which the Court of Appeal did not consider the whole of the record, the Court of Appeal should have concluded that there was a substantial miscarriage of justice. Orders should be made in each appeal as follows:1. Appeal allowed.2.Set aside paragraph 2 of the orders made by the Court of Appeal of the Supreme Court of Victoria dated 18 October 2021 dismissing the appeal and, in its place, order that:(a)the appeal against conviction be allowed;(b)the appellant's conviction be set aside; and(c)there be a new trial. The facts of these matters are set out in the reasons of Gordon and Edelman JJ, which I gratefully adopt. I agree with the majority that this was not a case in which it could be said that the misdirection (set out below) constituted a serious departure from the prescribed processes for a criminal trial[68]. That leaves for consideration the appellants' alternative contention, as described by Gordon and Edelman JJ[69], made in reliance upon s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).[68]Being the third category of case identified by French CJ, Hayne, Crennan, Kiefel and Bell JJ in Baini v The Queen (2012) 246 CLR 469 at 479 [26].[69]See [78], [92]-[106], being the second category of case identified by French CJ, Hayne, Crennan, Kiefel and Bell JJ in Baini v The Queen (2012) 246 CLR 469 at 479 [26]. The misdirection took place in the context of a detailed charge to a jury. It is convenient to set out the misdirection in full:"Now, there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis' evidence. Firstly, in a criminal trial, there is nothing more [that] an innocent [person] can do than give evidence in his own defence and subject himself to cross-examination, and that is what occurred here. On the other hand, secondly, a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis' evidence."