Awad v The Queen; Tambakakis v The Queen
[2022] HCATrans 153
[2022] HCATrans 153
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M44 of 2022
B e t w e e n -
DANNY AWAD
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Melbourne No M45 of 2022
B e t w e e n -
JOHN MICHAEL TAMBAKAKIS
Appellant
and
THE QUEEN
Respondent
KIEFEL CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 13 SEPTEMBER 2022, AT 10.01 AM
Copyright in the High Court of Australia
____________________
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend MR O.P. HOLDENSON, KC for the appellant, Mr Awad. (instructed by Milides Lawyers)
MR D.A. DANN, KC: If the Court pleases, I appear with my learned friend MR P.J. SMALLWOOD on behalf of the appellant, Mr Tambakakis. (instructed by Stephen Andrianakis and Associates)
MR P.J. DOYLE, SC: May it please the Court, I appear with my learned friend MR C.J. TRAN for the respondent in both appeals. (instructed by Commonwealth Director of Public Prosecutions)
KIEFEL CJ: Mr Doyle, I think you have been put on notice that the Court would appreciate some advice in relation to the position that the Commonwealth Director of Public Prosecutions is taking in relation to the title of the proceeding.
MR DOYLE: Yes, your Honour.
KIEFEL CJ: That is, not changing it from the Queen to the King. I would assume that the matter has been looked into and advice has been obtained.
MR DOYLE: Yes, your Honour, both those things have been done. It is the position of the Director that the source of authority to prosecute derives from section 9 of the Director of Public Prosecutions Act 1983 (Cth), and that that provision confers on the Director the ability to prosecute in his own name, or in any other matter whatsoever. It has been the practice to bring proceedings in the name of the sovereign – this indictment was brought in the name of the Queen and the Director does not seek to have the name in the proceeding amended.
KIEFEL CJ: I see. I suppose section 11(2) of the Constitution Act (Vic) has been considered, and it has been determined that it has not been picked up by any Commonwealth provision?
MR DOYLE: The view has been taken, your Honour, that it would be picked up by section 80 of the Judiciary Act, but that that question does not arise because the common law authority of the sovereign to prosecute does not arise.
KIEFEL CJ: I see. I take it from what you say, then, that it is not – the view has not been based upon this being the appellate jurisdiction of the Court?
MR DOYLE: No, more so, as I understand it, your Honour, that the authority to prosecute derives solely from that Commonwealth statute.
KIEFEL CJ: Well, thank you for informing the Court of the Director’s position, Mr Doyle.
MR DOYLE: Yes, your Honour.
KIEFEL CJ: Yes, Mr Walker.
MR WALKER: May it please the Court. Your Honours, the critical issue at the trial for attempt to possess cocaine of our client found reflection in the charge to the jury by the learned trial judge in the core appeal book, could I take your Honours, please, to pages 98 and 99. Your Honours are aware that there was a so‑called Kia van which was involved, on the hypothesis advanced by the Crown, in the attempted possession. The physical entry of our client, Mr Awad, into that van was necessary in order for the Crown to make good what it alleged against our client and, in particular, the physical and temporal starting point of his alleged criminal involvement. So, you see the reference by his Honour, line 10 on page 98, concerning the:
body of circumstantial evidence . . . to prove that Mr Awad got into the Kia van –
et cetera. At lines 19 and 20 after that summary:
Right. So that’s the prosecution case.
Then an important passage for our present purposes starting at line 21:
The case for Mr Awad is firstly, relies significantly on the evidence of Mr Tambakakis –
his co-accused:
that evidence is relied upon on the basis that you firstly, could not be satisfied, beyond reasonable doubt, that Mr Awad entered the Kia van. Mr Tambakakis told you that he did not, that is Mr Awad did not enter the Kia van. And that it was Mr Rohen who he travelled with to the warehouse, that is, Mr Tambakakis gave that evidence himself. Now if you think that that’s a reasonable possibility, that is that Mr Awad did not get into the Kia van, then you would not have the necessary factual foundation to be able to be satisfied that the element of attempted possession is proved in his case.
I interpolate, that is Mr Awad:
You must be satisfied beyond reasonable doubt that he got into the van before he could find him guilty.
It is against that background that we take your Honours first to the statutory provision in question, which is the heart of our case. In the Jury Directions Act (2015) of Victoria, section 44J is found in the joint book of authorities part A, volume 1, page 61. It is – as is plain from their terms – to be read together with section 44K. 44J takes the form of a legislative prohibition directed to a trial judge:
The trial judge must not direct the jury –
Those are the operative words. As we have put it in proposition one of our outline, they are unmistakably imperative:
must not direction the jury about any of the following matters in relation to the evidence of an accused –
An accused, of course, includes a co‑accused. I note paragraph (a), of which there was contravention in this case. Not something obviously about which we complain. Then, paragraph (b) is at the heart of this matter:
(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.
One finds in the appendant note part of the text, to which the Court can have regard, a paraphrase which may or may not prove problematic. It:
prohibits the trial judge from giving directions to the jury about particular matters.
One can only wonder why it was thought necessary for your Honours as readers of the statute to be told that. Then it goes on:
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 –
And there is a reference to section 65, to which I will come back.
KIEFEL CJ: So that comprehends that the parties themselves might raise these matters in some way?
MR WALKER: No. That has certainly been, as it were, a conceit that has informed a deal of the argument in this case but, in our submission, that has been rather too liberally permitted, perhaps by a lack of examination. It would be convenient if I went straight to section 65. You will find that on page 88 of that volume:
In his or her summing up to the jury, the trial judge –
(a)must explain only so much of the law as is necessary for the jury to determine the issues in the trial –
And I draw to attention there that the need to tailor these matters to the particular trial and by particularly conceptually to what are called the issues appears at the outset –
must refer the jury to the way in which the prosecution and the accused have put their cases –
And I interpolate of course the notion of an accused’s case needs to be understood against what is in the paradigm case no onus:
in relation to the issues in the trial –
Again, that means the particular case. It does not just mean what I might call elements of an offence:
but need not summarise the closing addresses of the prosecution and the accused –
So that immediately introduces the notion that, as one would hope, selectivity and an appropriate shaping of that referral of the jury to the way in which the parties have put their respective cases need not, of course, pick up all and everything said, not even by summary.
KIEFEL CJ: But that would leave it open to a trial judge to take up, say, where the prosecution had challenged or attacked the motive of an accused in giving evidence.
MR WALKER: If there had been challenge of a kind that, of its nature – both as a matter of fairness and as a matter of the testing of credibility and reliability – involved what your Honour, with respect, usefully summarises as “motive” – perhaps a very spare way of describing the range of considerations in this so‑called conventional direction – then, yes, that would be a candidate to be referred to by the trial judge as to the way in which they have put their cases.
Thus, for example, the Crown challenged the credibility of the accused Tambakakis with respect to the evidence he gave, et cetera, et cetera, et cetera. That does not, of course, involve the notion that the trial judge could ever come anywhere near endorsing – that is, lending the imprimatur of the judge – to the propriety of a matter with which sections 44J and 44K are concerned; a matter to which I will probably return if it reaches that point in reply.
Then, in section 65(c) one sees again the sparing the trial judge of the need to give a summary of the evidence but, by reference to the more detailed prescription in section 66 to identify evidence necessary to assist the jury to determine again what are called the issues in the trial. I do not need to dwell on any aspect of section 66 except to note that in subsection(2)(e) and (f) pick up, as the note in fact unnecessarily points out, what has already been noted in section 65(b) to which I have just referred.
Coming back then to section 44J, what does not, in our submission, appear with any degree of clarity at all, is that section 65 is a lens by which counsel, whose role emphatically does not include directing a jury, let alone instructing a jury on matters of law, let alone instructing a jury as to how they should go about fact finding. It does not to the slightest degree authorise via section 65 a judge referring the jury to an approach prohibited by section 44J to the evidence of an accused, let alone, of course, in such a way by that referral as to permit the jury to believe that is a matter they could accept. That is, a manner in which they are permitted to proceed.
We then come to section 44K. The pair of provisions exhibits, as I say, in 44J a direct statutory prohibition addressed to the trial judge concerning one of the most important aspects of the trial judge’s control of a trial. In 44K, the trope is adopted of abolishing a rule of common law – a form of words that bespeaks perhaps an approach to the common law considered by whoever selected the words to travel beyond simply a statute which is inconsistent with the common law, and obviously governs to the exclusion of the inconsistent common law. So:
Any rule of common law –
A kind of academic scepticism, I suppose, as to whether there is one –
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.
There, the Notes capture, as it were, in abbreviated form, the consideration which the materials drawn to your Honours’ attention by all the sides in this argument can be seen in the law reform considerations by way of travaux preparatoires. I wanted to go, if I may, very quickly to what might be, in our argument, regarded as the high points of those three Victorian decisions: Haggag, 101 A Crim R 593, McMahon, 8 VR 101 and Buckley, 10 VR 215 from 1998 and 2004 respectively.
You will find, your Honours, in volume 4, being part D of the joint book of authorities, at page 1041, that passage in the reasons of Justice Callaway – he gave the reasons of the Court in Haggag – it is ‑ ‑ ‑
GORDON J: What page of the report, is that, Mr Walker? I apologise.
MR WALKER: I was about to say – it is a 101 A Crim R 598.
GORDON J: Thank you.
MR WALKER: Just after halfway down – I will not read the whole paragraph – it commences:
Approaching the matter in that way, there is a distinction between two quite different suggestions –
What we submit is that, although there is – as to be expected – sound logic in what his Honour explains, there is, with respect, in terms of what might be called the psychology of a jury, perhaps a danger of overdrawing any kind of watershed difference between the two suggestions that his Honour is comparing. The so‑called “conventional comment” is the one more or less to the effect that 44J(b) prohibits and his Honour there describes it as:
no more than an innocent person can do than give sworn evidence and submit to cross‑examination, a guilty person may choose to brazen it out in the witness box.
That is contrasted with what is said by his Honour to be quite different, and the difference lies in the lack of an assumption in the first and the arguable presence of an assumption in the second of the guilt of the accused. Thus, it is the second approach, namely, an:
accused has a motive to lie in order to secure an acquittal.
Is said by his Honour to undermine the presumption of innocence. In the matter that we have explained in our written submissions – both in‑chief and in reply – and which I will elaborate a bit later, in fact, that is a distinct danger for both of these possibilities, and in particular the notion of a guilty party and a so‑called innocent party is one which – understandably – law reformers regarded as problematic and likely to confuse. Your Honours will note that as to that second alternative I stress not the conventional comment that we are concerned with in 44J, but the supposed contrast with it. Justice Callaway identified a dangerous circularity, and in our submission, there are distinct possibilities of that same kind of circularity informing a misuse of the comment now prohibited by section 44J.
The next case that I will take you to is McMahon in the same volume of authorities. The volume page 1062, the report 8 VR 101 at 116 to 117. It is in the volume of authorities, it is 1061 and 1062. Here, the President Justice Winneke, quotes at the foot of paragraph 28 on page 116 of the report, from a direction which the President described as being in terms that are conventional in Victoria, and which in his view were unexceptionable, and you will see about an inch down in the indented quote, there is a reference to:
two things that you have got to bear in mind about this. First, a guilty person might well decide to brazen it out in the witness‑box in the hope that he will be more likely to be believed if he takes the risk of being cross‑examined than if he dodged it by staying in the dock and not giving evidence . . . Second, however, that an innocent person can do no more than giving evidence on his own behalf. That is what I say happened, he says, and I [pledge] my oath to it, and you can cross‑examine me about it. That is . . . what the accused did here. You should weigh both these comments –
That is a passage which might be regarded as typical of the practice which was the object of section 44J, 44K to alter, to reverse. Your Honours will see that the notion of being more likely to believed – in the old language, if you brazen it out – means more than just, of course, being believed as to your testimony, because the comparison is between giving testimony; being cross examined – being believed, and that being more likely than being believed if you stay in the docks. Now, it must mean that being believed is not just as to your testimonial honesty and reliability, but also as to what might be called the genuineness or substance of your plea of not guilty. Your Honours can see well how that might undermine presumptions.
In paragraph 29, on page 117 of the report, the President rejected the notion that, in light of all the directions in that case, this was a direction that invited:
the jury to treat the applicant as a “suspect witness”, or that – in some way – the presumption of innocence was being undermined.
Both our argument and the law reform consideration – and the ultimate enactment of sections 44J and 44K – therefore may be seen as neatly poised so as to contradict that proposition; to express a legislative judgment to the contrary of that conventional judicial assessment. The third of the footnoted authorities, so to speak, under section 44K, is Buckley, (2004)10 VR 215, found in the volume of materials at the relevant passage at page 995, and that is page 213 of the report in the reasons of Justice Nettle.
There, in paragraph 54 his Honour extracted from the charge to the jury there the comments of a kind that are both familiar and conventional, and the trial judge used this expression:
[counsel for the applicant] anticipated the comments that judges invariably make.
A sign, in other words, that it is not just these three cases that were, so to speak, outliers being extirpated by sections 44J and 44K; they are typical of the practice described by Mr Justice Winneke as conventional and by Justice Nettle as – the trial judge being considered by Justice Nettle – as something invariably done. Going back to that trial judge:
What more can an innocent man do than get into the witness-box and pledge his oath to his account? On the other hand, there is an argument [to the effect that], well, you might as well get in there and brazen it out; you would be expected to give evidence and give an account about it. Those things sort of balance themselves out.
Said the trial judge in Buckley. Your Honours will have seen other language, perhaps, to similar effect – whatever it means conceptually – of neutralising or cancelling the matter which is, in our submission, a puzzling notion as a justification for something being said – at all, that is. In paragraph 55 the relevant ground of appeal addresses that half, as it were, of the conventional direction and raised the argument that those words were unfairly disparaging of the accused:
calculated to result in the jury giving less weight to his testimony than properly they should have.
His Honour roundly rejects that, does not think there is anything in that complaint:
the words used are just another and in my view just as acceptable way of expressing the standard direction –
Again, words that show that there is a practice, culture or expectation – in Victoria at least – concerning that kind of judicial direction. The very object, in other words, of the legislative reversal concerning the stipulated note of trial constituted by sections 44K and 44J.
Your Honours will see that in paragraph 56, Justice Nettle described the so‑called standard direction in ways that understandably render that an appropriate candidate for the footnote to 44K. It describes something not special to that case at all. You can multiply cases, but that is not ‑ ‑ ‑
GORDON J: There are outliers the other way as well, are there not?
MR WALKER: I am so sorry, your Honour?
GORDON J: There are outliers the other way as well, though. In other words ‑ ‑ ‑
MR WALKER: Precursors, they could be called.
GORDON J: Well, it is interesting, when one of the critical ones was the same here as Haggag, to the opposite effect – or arguably the opposite effect.
MR WALKER: To put it another way, the profession, both Bar and Bench, were not wholly taken by surprise by a legislative concern about these matters. It had been a subject of, if I may put it this way, anxious deliberation. There have been very clear views expressed. The three I have just quoted could not be clearer, particularly the third. Justice Winneke described it as unexceptionable as well. But Justice Gordon is right, there was a leadup in the case law to this. If there is one thing, it is clear that a court considering 44J and 44K should feel no encouragement to go to case law. You need to understand what is being abolished in 44K, you are told how to understand that and you are told it in passages – the ones we have selected I hope perform this task of a very plain statement of what the judges had been approving, or a majority of them, and that which the judges had been approving was being reversed, abolished as a rule of common law and prohibited as conduct by a trial judge respectively by 44K and 44J.
As we put it in proposition 1 of our outline, the provenance, the creation of the enacted words in 44J and 44K, are, and are only to be seen as, stipulations as to a mode trial in a very particular and specific sense and, furthermore, an exertion in terms that might be regarded even as pleonastic as between 44J and 44K of the legislature’s superiority to the common law made by the judges concerning this aspect of trial; furthermore, even recording in an evocative fashion the statements of common law by the most eminent of judges so as to identify without the possibility of ambiguity that which had been in accordance with the law and now would be contrary to the law.
EDELMAN J: It does, Mr Walker, however suggest that the legislative correction in scare quotes of the ‑ ‑ ‑
MR WALKER: Yes, reversal is a more neutral way, your Honour, yes.
EDELMAN J: ‑ ‑ ‑ common law was not viewed by the Parliament as going to a matter that was fundamental to the trial.
MR WALKER: No, no, and that is obviously important for my argument. It does indicate that it goes to a matter which brooks no disobedience. Compliance is not optional. It is not a matter to be considered, and then according to the exigencies of a particular trial to be observed or not, such as the common law displayed in a number of different ways.
KIEFEL CJ: That does not take you far enough, does it? To say that it requires compliance is to say it is imperative. Compliance is required.
MR WALKER: Yes.
KIEFEL CJ: For compliance is required, one infers, because there are dangers associated with saying these things in directions to a jury ‑ ‑ ‑
MR WALKER: Yes, just as there are – I am sorry.
KIEFEL CJ: ‑ ‑ ‑ but the question of substantiality of whether there is a substantial miscarriage of justice looks to the actuality of what has occurred in context from which you determine the question which is now before us.
MR WALKER: So long as one does not pass over the other way in which this Court considers the consequence with respect to the common criminal appeal provisions of disobedience to positive requirement.
GORDON J: Is that to say any more than we identify the error and then look to the nature and effect of the error?
MR WALKER: No, it is saying more than that. That is what I apprehend Justice Edelman is suggesting I confront. Let me do so immediately. I accept that what the three of your Honours have raised with me goes right to the heart of the point. It is easy in this case to show there is a breach of a prohibition. The question is what, if anything, should that have meant with respect to the step necessary to obtain the quashing of retrial, which would be substantial miscarriage.
EDELMAN J: Well, one might think that the contravention of an expressed legislative direction or requirement amounts to a miscarriage of justice. Why would this be in the special category of cases where the Crown does not even have the opportunity of showing that it was inconsequential in the course of events that occurred?
MR WALKER: The answer is in the language that your Honours will recognise because the complete non‑compliance here – that is, the utter contravention of the prohibition – is a serious departure; that is, it is not in detail, it is not peripheral, it is complete and utter from what are, on any view of it, prescribed processes for trial. That is a phrase adapted from a number of this Court’s considerations of substantial miscarriage in such a context, and I am quoting from the quote in effect of the reasons in Baini v The Queen (2012) 246 CLR 469, at 479, paragraph 26. I do not need to read the passage, but your Honours understand that this is an area where the Court has very overtly held back from an exhaustive or specific list of those matters that can amount to a substantial miscarriage.
There were three categories to be understood against that caveat that nothing is exhaustive – there are three categories that, in that paragraph 26 in Baini, were proposed as emerging from cases of experience and logic. First, where the jury have arrived at a result that cannot be supported, that is the first kind of miscarriage – these three categories being non‑exhaustive, I stress – second, 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.
GORDON J: It is the second way you put your case.
MR WALKER: Yes. That is right, but is not what I am arguing in the course of arguing that.
GORDON J: No, I understand that.
MR WALKER: Quite so. Quite so.
And third – and it is different in that regard, as Justice Gordon has drawn to attention. Third, there is the case of where there has been a serious departure from the prescribed processes for trial. Other phrasing, as your Honours know, is traditional, such as, there has not been a trial according to law.
GORDON J: It is the bit that follows it though, Mr Walker, that you identified rightly that this is not an exhaustive list, but it is the last line which, in effect, infects what has gone before. It is a question that requires a judgment to be made.
MR WALKER: Your Honours, there is no doubt there is a judgment to be made and, in this case, we say it is a judgment that is made by the clarity with which a practice of directing or instructing a jury as to how they may approach the evidence of an accused has been identified and singled out for prohibition. The judgment the Court makes is that has been considered sufficiently important by Parliament as to reverse what the judges had been saying was unexceptionable, that important.
GLEESON J: So, does this mean that any direction that is prohibited by the Jury Directions Act is a serious departure?
MR WALKER: Yes. If there is a prohibition in terms without any of what I might call the let‑out phrases, your Honour – “unless the court”, et cetera. In the absence of phrases like that, the prescripts of the legislature are to be obeyed. No court could say to the contrary of that, and if they are disobeyed, it means that the mode of trial required by Parliament has not been had. It is for Parliament to say these are the things that must happen or must not happen in a trial and not for the court to say that some are more important than others. See the antecedent common law that, for example, regarded what is now prohibited as unexceptionable.
EDELMAN J Why should that only apply to a prohibition that comes by Parliament? If that submission is correct, every common law prohibition would also be a fundamental departure from the processes of trial.
MR WALKER: No. It is the subordination of the Court’s view of what was previously unexceptionable or standard, et cetera, to the legislative judgment that it is now prohibited that marks this out as different from the approach of a court to its own jurisprudence, that is, judge‑made rules.
First, of course, there are very few judge‑made rules that, as it were, have a coda to the effect come what may or regardless of the circumstances. To take, I suppose, the most obvious of examples, even unfortunate departures from the clarity of directions as to the onus of proof or the standard of proof can, depending upon the circumstances of a case, not constitute a substantial miscarriage of justice. Those are familiar to anyone who has had to pore over, and either argue or judge – as the case may be – the effect of a particular charge in a particular case. In other words, the common law has never had a rule that says come what may, regardless of circumstances, a foot wrong in one part of an otherwise impeccable direction concerning onus will render it impossible to maintain the verdict and conviction.
GORDON J: Can I ask one question about 26 and the limb that you rely upon? I am sorry to go back to it, but can I ask just one more question?
MR WALKER: Of course, your Honour.
GORDON J: Does it, in its terms, recognise that there can be departures from the prescribed processes – and serious departures?
MR WALKER: No.
GORDON J: In other words, is it not recognising that there are – read with the last sentence – judgments to be made? Because it talks about “a serious departure”; something which has effect in the way on which you have just been describing, giving rise to a “substantial miscarriage”.
MR WALKER: I am sorry, I should have said yes, but ours is a case of serious departure because there is no fraction or, as it were, nuanced judgment to be made as to whether 44J has been disobeyed.
GORDON J: It may not be. It may be that one recognises there has been a departure from the prescribed processes because the thing that was not to be done has been done. The question is what role the “serious” plays when one looks to it in order to determine whether or not it is truly a substantial miscarriage on its own without the onus shifting to the Crown.
MR WALKER: What I am suggesting – and I am conscious that I am butting up against the danger of construing judicial explanation of the statute rather than the statute, but in our submission the notion of a serious departure from prescribed processes is not a mandate for a court to say the prescribed processes exhibit a legislative concern with trivia rather than important things. We are going to observe the prohibition by saying there has been an irregularity, because what the law of Parliament has required has been disobeyed, but we do not think Parliament should have, or was wise to, so provide. That is the way in which we say a “departure” means the extent of the contravention, as opposed to opening up for judicial consideration whether what the legislature has done is wise. That is for the legislature to determine. The ‑ ‑ ‑
GLEESON J: Mr Walker, do you see your argument reflected in the purposes of the Jury Directions Act?
MR WALKER: Yes. There cannot be any question but that the purposes of the Act are to provide – my word – clarity as to what must be said, may be said, need not be said. There are other, as your Honours know, forms of words, but I think those are all the categories. There cannot be any doubt that the whole statute bespeaks its purpose for regulating a mode of trial as to one of the most important aspects of it, namely a charge to the jury.
KIEFEL CJ: But not all of the three prohibitions are directed to the protection of the accused, are they not?
MR WALKER: No, no. Quite so.
KIEFEL CJ: This is why you are being careful to say “regulating” rather than “protecting”.
MR WALKER: Absolutely. Many of them are – mercifully, we cannot conceive of notions of a fair trial that are not concerned for an accused, but may I hasten to say, it is not at all confined to the interest of the accused; it is the administration of justice in which the community, through the prosecutor, has an evident public interest.
STEWARD J: Mr Walker, can I ask you a question? Can a trial judge correct a serious departure of the kind we saw here, for appropriate language to a jury? Or is it a case of once out, gone for good?
MR WALKER: It could not possibly be the second – that is, as an a priori assessment – but there could be no correction. Let me elaborate that. It is clear that – if I may say so – juries being human will understand that the same is true of witnesses, accused, counsel and judges. So, a possibility of error – or slip, or inadvertent misspeaking – is part and parcel of a trial as much as of any human communication.
It follows that – to use perhaps ponderous language – a judge interrupting himself or herself to say, I am sorry, ladies and gentlemen, I have utterly misspoken, I should have said you must not hold it against an accused that he or she has not given evidence, et cetera.
GORDON J: In a sense, Mr Walker, section 7 of the Jury Directions Act covers it because it provides explicitly that correction of statements and suggestions that are prohibited by the Act are to be made unless there is good reason not to.
MR WALKER: Yes. There is no doubt about the fact that a serious departure can be, as it where, either ameliorated or obliterated so far as an appellate court’s consideration of the propriety of the trial process is concerned. There is no difficulty about that, but, in this case, consideration was given to what, if anything, could be done, and no‑one – including the Crown – had a suggestion. Obviously, from a defence point of view, the forensic consideration of unwanted focus and attention being paid to what is perceived as to at least part of it as a direction that tends against the interest of the accused is a legitimate reason to say, in a particular case – as in this case – this is a serious departure which now cannot be cured. In any event, it was not cured in this case.
STEWARD J: Can I ask – just following off from Justice Gordon’s observation – here, as I understand this, it was agreed that the correction should not be made. So, it may have fallen within section 7(2), a situation where:
The trial judge need not correct a statement . . . if there are good reasons for not doing so.
MR WALKER: There were no such reasons given insofar as the trial judge is concerned; that is, in particular, there was no assessment of which there is any trace that this was not part of a direction to which the jury ‑ ‑ ‑
STEWARD J: If there were good reasons in this case, how would we then approach the breach of section 44J?
MR WALKER: Your Honour is really asking me about subsection (2) of section 7.
STEWARD J: Yes. So, here it was clear that it was a breach of the provision – the trial judgments informed that. And then the question became should it be corrected, and the answer was, whatever reason, no. What I am asking is, if there were a good reason not to correct the misdirection, what would that mean for the breach in 44J and how that would feed into the appeal grounds? It may be that the better answer, as you have said, is there were no good reasons in this case.
MR WALKER: In this case, I am trying, your Honour, to grapple with what your Honour has raised as a matter of principle. I am trying to avoid the tail wagging the dog – the modern drafting, with notes and examples and the like, happens to include a self-administered correction by council for subsection (2) of section 7, your Honours will have noticed.
So, a trial judge need not, as it were, further correct something – an error by counsel – if counsel has corrected it, I suppose it is to encourage counsel to self-correct by the possible benefit of not having it rubbed in, in front of the jury.
GORDON J: Your point of principle is, you say, 44J is imperative in its terms, it sets the prescribed process to be adopted, there has been a breach and therefore it constitutes a serious departure from the prescribed process.
MR WALKER: Yes. In answer to your Honour’s earlier question to me, it is a serious departure because this is not a slip in some minor degree in the observance of the prohibition. It was a wholesale complete or utter contravention of the prohibition.
GORDON J: And where – I think – the question which arises is whether serious departure brings with it some other assessment?
MR WALKER: We submit not.
GORDON J: And you say no, but your ground 2 says if we are wrong about ground 1, then this is in that category.
MR WALKER: That is right. Yes, I will go there. We have written that argument, I am going to go into that briefly, as your Honours know. But at the moment, I am ‑ ‑ ‑
GORDON J: The reason why I focus on the first argument, Mr Walker, is I think I am concerned that if we set the bar at that level at which you would set it, there would be many trials that would probably fall away as a substantial miscarriage of justice without further analysis, and that seems to me to be inconsistent with principle, and in particular with Baini.
MR WALKER: No, and I will try and persuade you, no. There a sunnier view of things, namely that it will assist the observance of the plainly stated prescriptions of power as to how to hold a criminal trial. Now, there are judgments to be made as to whether there has been a contravention, and there may be degrees of contravention.
The statutory requirement in a Bench trial for a judge to give reasons – AK is an example, there – as is notorious – there is a spectrum of degrees or ways in which a trial judge may have failed to give reasons, and that necessarily, as the difference of the opinion in AK itself demonstrates, it necessarily involves a judgment. In that case, by majority, the judgment was made that the shortcoming in reasons was such as to be simply a contravention of the requirement to give reasons as to critical elements of the explanation for the offence being proved in that case.
It therefore followed for the reasons that paragraph 26 in general terms demonstrated that, without exploring what the effect that had on a verdict, there has simply been a serious departure from the prescribed process for trial. In that case, it was what followed, without there being a jury, after the judge went on to consider the verdict. In paragraph 33 of Baini, the point is emphasised that the contrast is between areas:
which possibly affected the result of the trial –
that is the first sentence in paragraph 33:
but also –
that is, as well as those:
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.
So, you do not ask what is sometimes called the inevitable question: was conviction inevitable, et cetera. That is what their Honours then go on to consider in that passage. One can compare those two approaches with the approach taken by Justice Gageler, which uses the established expression “fundamental”. That is paragraph 65 on page 493 of 246 CLR. Your Honours can see the phrase in apposition to fundamental that his Honour uses, again in traditional sense, some:
non‑observance of some condition essential to a satisfactory trial –
That is contrasted with the other category to which his Honour then turns. It is for those reasons that our first point that we advance by our propositions 1 and 2 combined is that there can be no doubt that this is a complete or utter – surely, therefore meaning serious – departure, not just in some peripheral or limited way, of the prohibition. There can be no doubt that there was the anterior legislative judgment that trials in Victoria should not have those – not should have – must not have those directions by trial judge to juries, and there cannot be much doubt about the significance of jury directions if only, as Justice Gleeson draws to attention, that this is an Act that is prefaced by some rather grandiloquent and significant assertions of the significance of jury directions in a trial – see section 5 under the heading of “Guiding principles”. In section 5(5) the interpretive nudge given that, say, 44J and 44K are:
to be applied and interpreted having regard to the matters set out in this section (to be known as the guiding principles).
In our submission, when one looks at those guiding principles, it can be seen that there is surely a worthy ambition, though it is not for the legal profession to congratulate the legislators, that there be, for example, an avoidance where possible of potential for confusion and, as your Honours know from the travaux preparatoires and is, in our submission, evident from the nature of the conventional direction, of course there is potential for confusion, to which I shall come.
In proposition 3 we make the point, which I do not need further to elaborate beyond what I have advanced in my attempts to answer some of your Honours’ questions, namely that the clarity with which Parliament has spoken – “trial judge must not” – really does not brook of the judicial addition, but it does not matter if the trial judge does. Proposition 4, obviously enough, is designed to be a conclusion which either follows or not by reference to the written argument to which we have referred in propositions 1 to 3 and my answers in particular to your Honours’ questions.
We then turn, in proposition 5, to the particular nature of the misdirection in this case. Could I take you to it in particular. I appreciate your Honours are familiar with it, but in the joint core appeal book at page 32 – your Honours will recall I took you to pages 98 and 99 where the significance of Mr Tambakakis’ evidence for Mr Awad’s case was plainly and correctly directed. At page 32 you find starting at line 13 the offending portion of the direction:
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”, I think it should read:
an innocent can do than give evidence in his own defence and subject himself to cross‑examination, and that is what occurred here.
I would ask your Honours to note the conventional, standard, invariable use of the word “innocent”, and I am going to come back to it:
On the other hand, secondly, a guilty person might decide to tough out –
a more idiomatic word, perhaps, for the traditional “brazen”:
might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed –
again, in the sense I explained earlier:
and his defence accepted –
the phrase to which we draw attention, I will come back to it:
if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis’ evidence.
Now, “on the other hand” as a phrase perhaps conjures up this odd notion of cancelling out or neutralising that your Honours will have seen in the authorities and some of the argument. May I deal with that immediately?
Those observations, as his Honour called it, being factors which the judge was telling the jury they should take into account when considering what, for Mr Awad, was so important, Mr Tambakakis’ evidence, could not possibly be understood as saying do not take either of these factors into account because they cancel out. In fact, whatever the figure of speech cancelling out is intended to convey, there is no cancelling out here. One or the other, it is a choice that has been adopted, proposed. And one of the vices is that it would appear to be dichotomous in the sense that it is either one or the other.
Goodness knows how Edwards fits into this, that is, a person not guilty telling lies. Human experience suggests that the world simply does not divide into people described as innocent or guilty as in that conventional direction. Furthermore, a choice of that kind poses this entirely wrong, jurisprudentially dangerous notion that the choice in a criminal trial is between finding a person guilty or innocent where the overall issue is simply whether the Crown has proved its case of guilt beyond reasonable doubt.
KIEFEL CJ: Mr Walker, if context were to be considered in relation to this misdirection ‑ ‑ ‑
MR WALKER: Yes.
KIEFEL CJ: ‑ ‑ ‑is it relevant, do you say that it occurs fairly early in the charge, in what is quite a lengthy charge?
MR WALKER: No. There are different schools of thought, as your Honours appreciate, as to whether, in a charge to a jury, you say the important things which are to govern their thinking upfront ‑ ‑ ‑
KIEFEL CJ: Yes.
MR WALKER: ‑ ‑ ‑ whether you say them at the back, or whether, as one often sees, as to the really important things, you put them in both positions of prominence.
KIEFEL CJ: But this is directed to the single issue about the credibility of Mr Tambakakis’ evidence.
MR WALKER: And, in our submission, its placement, bearing in mind what is to follow in the charge is there to accompany the jury through not only their listening to the rest of the charge but then in their consideration of his evidence. It would not be forgotten.
KIEFEL CJ: That is really what I was asking you, was whether or not, given the point at which it occurs and the topic with which it is dealing, whether or not that is likely to carry more weight with the jury.
MR WALKER: I do not want to pretend to better amateur psychologising that I am capable of, but your Honours, in our submission, it would be a very understandable purpose in designing the sequence of remarks to a jury, to place the way in which you should view certain evidence sufficiently before the summary of such evidence so as to be, as it were, the accompanying approach, the direction the jury will have in their mind as they listen to the more detailed exposition of those evidentiary matters.
EDELMAN J: But the jury would not have been in any doubt that Mr Tambakakis’ credibility was absolutely crucial.
MR WALKER: None at all.
EDELMAN J: And they would have been paying, hopefully, very close attention to directions about his credibility and about the manner in which his evidence should be assessed.
MR WALKER: Your Honour, I think I am bound, as your Honours are bound, to take that as – as it were – the ground rules of appellate review of the matter unless there is evidence to the contrary, such as a jury question that might indicate they had not understood something.
GORDON J: Or you could put it a different way: unlike Hargraves’ Case, this is a case where the credibility and reliability of this particular witness were critical to the issues in the trial ‑ ‑ ‑
MR WALKER: Yes.
GORDON J: ‑ ‑ ‑ about which directions are made.
MR WALKER: Yes.
GORDON J: So that is important context.
MR WALKER: Yes.
GORDON J: It really answers the Chief Justice’s question, does it not, that in terms of where it is in the charge is not surprising, given the significance of the evidence.
MR WALKER: Yes, all of it. Yes. Of course, your Honours appreciate how we try to call all of that in aid for the alternative approach, which is, of course any misstep in relation to how to approach Mr Tambakakis’ evidence is calculated to deprive us of a real chance, et cetera ‑ ‑ ‑
GLEESON J: But ‑ ‑ ‑
MR WALKER: If I have to go there, that is, if I cannot simply rely upon a serious departure from prescribed processes of trial.
GLEESON J: But you are not suggesting that the jury would be left with some particular erroneous impression about Mr Tambakakis’ evidence, are you?
MR WALKER: Yes, I am. That passage in the summing‑up, in our submission, exhibits all the vices that had been discussed in the past and in the travaux, all of which have been drawn together for the Parliament to say, do not do it – you must not do it. For starters, they say this contrast between innocent and guilty, this notion of having his defence accepted –you see that in lines 21 to 22 – does nothing whatever in relation to preserving the clarity of beyond reasonable doubt.
In particular, the significant possibility that, without feeling a particular confidence in Mr Tambakakis’ evidence, nonetheless it is not such as is to remove, eliminate, reasonable doubt as to whether or not Mr Awad got into the Kia van in the appropriate time and place for the Crown case against him to be made out. In our submission, the admonition to the jury that they were to bear those matters in mind – as opposed to the standard and unexceptional, treat his evidence as you would approach any other witness’s evidence – is very much, we say, a misleading of the jury from their task in evaluating all and any evidence.
GLEESON J: Well, the trial judge said that very thing in the next paragraph: that you should treat the accused’s evidence ‑ ‑ ‑
MR WALKER: That ‑ ‑ ‑
GLEESON J: ‑ ‑ ‑ in exactly the same way.
MR WALKER: That tells in favour of our argument, because no one listening to that could think that what was immediately following amounted to a retraction of or correction of what had immediately gone before. The judge is offering all of this as a seamless whole, not going back and saying look, yesterday I think I told you this, I should not have, I should have been slightly different or very different. The fact that it is immediately followed really makes clear that that is all to be observed and that is why, with respect, confusion, which, as we know it is partly the purpose of this statute to reduce if not eliminate, is very much enlivened by this.
This notion in particular of a person being described as a guilty person in the jury’s mind at the point that he or she enters the witness box to answer questions is, in our submission, a kind of circularity for the reasons – though, for different purpose – that Justice Callaway had pointed out. You do not start with the notion that the man is guilty, therefore I disbelieve him, therefore I find him guilty. That is precisely what Justice Callaway described as the vice of one of the possible ways in which a jury might be directed. In our submission, the same is true of what has happened here.
The notion that the jury is being invited to regard somebody, possibly, as one of the two choices – apparently the only two choices – being a guilty person who has decided to tough out cross‑examination is, in our submission, completely unhelpful and likely to lead astray from the open‑minded consideration of all the evidence, as well as their impressions of a particular witness with particular pieces of evidence, but in light of all the evidence concerning whether or not the Crown has discharged its burden. It is for those reasons in our submission that yes, this was a misdirection, it leads astray.
Your Honours, proposition 6 is perhaps a matter to which I will have to return if it comes to it in a reply, we have canvassed in our written submissions – particularly in our reply, it continues past paragraph 25, in fact – matters to which attention has been drawn against us as being, as it were, ways of regarding this serious departure, as we put it, by contravention of the prohibition as, in the context, venial or, not as such as to have distracted the jury from how Parliament – and therefore the court applying Parliament’s prescript – required them to consider the matter.
In large part, by way of a consolidated approach to all of the possible candidates that our learned friends have gone to, the short answer is that those are passages dealing with something different, and not dealing with it ever in a way that says, what I told you earlier about Mr Tambakakis – an innocent man only being able to give evidence, and a guilty man may be brazing it out, et cetera, put that to one side. Nothing to that effect at all, nothing to attenuate the prominence given to this admonition as to how to approach the co‑accused’s evidence, so far as Mr Awad was concerned.
GLEESON J: Mr Walker, is there any significance in this case that Mr Tambakakis was putting himself forward as someone who was not an innocent in the sense that he was not entirely denying his involvement, he was saying that he was doing something that appeared to be wrong but something that was not as bad as that with which he was charged?
MR WALKER: No, not at all. In particular, any approach otherwise would open the door to utterly unacceptable – what I might call branding categorisation of somebody – would be contrary to a very common direction given.
GLEESON J: What I am getting at is – perhaps this takes it too far – is that the suggestion that Mr Tambakakis might have been an “innocent” may have been a difficult one for the jury to accept in the light of the evidence that he gave.
MR WALKER: That is one of the reasons why “innocent” is, with respect, a terrible word to have introduced into the discourse. He pleaded not guilty and he certainly does not have an onus to prove innocent, and many a person who pleads not guilty can be entitled to an acquittal notwithstanding admission to discreditable or illegal conduct – or conduct which is both – during the course of giving evidence. Indeed, there are directions to that effect – and very properly. May it please your Honours.
KIEFEL CJ: Mr Dann, the Court might take its morning break before we hear from you. The Court will adjourn for 15 minutes.
AT 11.13 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.27 AM:
KIEFEL CJ: Yes, Mr Dann.
MR DANN: If the Court pleases. This was a case where Mr Tambakakis’ whole defence depended on his evidence and the jury’s assessment of his evidence. It was a case where he gave evidence across two days of the trial and, in the course of that evidence, he provided explanations as to various aspects of the prosecution case and the evidence, and a multitude of credit issues arose.
What did he think was in the boxes he was picking up? Why was he picking up those boxes in the first place? Who asked him to pick up the boxes? Why had he rented the property where the boxes ended up in a false name? Why did he think there were steroids in the box? Why had he been involved in a previous illegal importation and distribution of steroids? How did he explain his movements in terms of slowly driving past where the boxes had been dispatched to? Why was he driving a car at one point with false number plates? What did he know of the co‑offenders Mr Rohen and Mr Kanati? What did he know of the alleged co‑offender Mr Awad? How did he meet him? Why did he meet him on the same day that the boxes arrived? Why was he in possession of scales and gloves? Who were the voices on the listening device that the prosecution played to the jury in this case?
So, it just went on and on. What was he doing at the warehouse? Who was at the warehouse? So, the question of his credibility was a critical issue in this trial and was critical to the outcome of this particular trial. You had the learned prosecutor going to the jury on the basis that his evidence was largely made up of lies. His evidence was incoherent, was another submission that was made. His evidence made no sense. His evidence – a lack of credibility. His evidence was totally implausible. His evidence collapsed, and none of his evidence should be given in credence at all.
In amongst that, this submission was made that we have extracted in our submissions:
“There are various explanations that can be offered for why an accused person in Mr Tambakakis’s position gave evidence in the witness which appeared to be so implausible –
In cross‑examination ‑ ‑ ‑
KIEFEL CJ: Mr Dann, where does it appear in your written submission?
MR DANN: It is paragraph 14.
KIEFEL CJ: Thank you.
MR DANN: In cross-examination, he was – obviously, given that final address – accused of lying. He was accused of making up evidence in response to other evidence that he heard in the case. He was accused of lying to protect Mr Awad. When it came to the defence counsel – the various defence counsel – there was the opposite approach. His own counsel said that his evidence had the ring of truth about it; that he was fundamentally unshaken in cross‑examination. Mr Awad’s counsel made extensive submissions about Mr Tambakakis’ credibility and his evidence and elaborated on a submission that his evidence was demonstrably true and took the jury to four aspects of the evidence that demonstrated that evidence to be true. Even Mr Kanati’s counsel made submissions about Mr Tambakakis’ evidence and relied on it in part. So, in that context, it can be said that this jury’s assessment of his evidence went to the heart of this trial, and so this prohibited direction went to the heart of this trial.
It is not a direction about some evidence that ultimately was not in dispute, such as – the potential for such an issue to arise was raised in Weiss (2005) 224 CLR 300 and Kalbasi (2018) 264 CLR 72. It is not a direction about an element of an offence. It was not in dispute. It is not a direction that was made in the context where the Court of Appeal found that Mr Tambakakis’ evidence was so glaringly improbable or incapable of belief that it would not have made any difference. So, they are the situations that are spoken of in Hofer (2021) 96 ALJR 937, and Castle (2016) 259 CLR 449.
No, this was a case where, because of that contested evidence and that contested credibility, this prohibited direction, as we say, went to the heart of the trial. We adopt what my learned friend, Mr Walker, has so far articulated to the Court in respect of – can I call it the first step of this appeal in terms of fundamental irregularity. I do not seek to repeat what he said about the efforts of Parliament to set out prescribed processes for a fair trial including a prohibition of this direction.
If more is needed in perhaps response to Justice Gordon’s question about – if this Court thinks that more is needed in terms of the fundamental irregularity consideration and a broader inquiry needs to be undertaken in terms of what does this prohibited direction go to, what is its nature, what is its possible effect on the trial, if that is needed, we do rely on that context, that this is a prohibited direction that goes to that central question of this man’s contested credibility where his whole defence relied on the jury taking a fair and appropriate approach to the consideration of his evidence. So, if more is needed, we say it can be seen in this case in that very context that I have taken the Court to.
KIEFEL CJ: Do you say it then falls within the second category in Baini that is an error which an appeal court cannot be satisfied did not make a difference?
MR DANN: I am arguing in the alternative. So, both fundamental irregularity ‑ ‑ ‑
KIEFEL CJ: I had understood it was in the alternative. I was just asking about the alternative. Is that how you are putting it?
MR DANN: Yes, I am going to take the Court through – mainly, I will be talking about that very category that your Honour has taken me to, but, as a first step, we do adopt and support what has been put about fundamental departure and we ‑ ‑ ‑
EDELMAN J: Except, as soon as you start talking about all of the context and the particular circumstances of this case, and the importance of the direction and the circumstances of this case, you are in the second category, not the first. The first category is concerned with errors that are so fundamental that it does not matter what context they occur in. They are such violations of the precepts of the trial that they are automatically a substantial miscarriage of justice.
MR DANN: Yes. That is why, your Honour, I said I adopt what was put my learned friend, Mr Walker. However, in response to a question whether anything more is needed in terms of that inquiry, if it is – I am not saying it is – if it is, in response to the question, you had it in this case.
I do, however, want to concentrate on – perhaps take this from a different angle, because the majority in the Court of Appeal resolved this substantial miscarriage of justice question on the basis that this was an innocuous error that could not have made a difference. In our respectful submission, that approach ignored the potential for this direction – this prohibited direction – to deflect the jury from the proper approach, the consideration of Mr Tambakakis’ evidence.
That proper approach involves a steadfast adherence to the presumption of innocence and the onus of proof. The difficulty with this direction – and it has been identified in the lead up to its prohibition – is that it does focus a jury on the motivation of accused persons who give evidence, and it does present – as has been submitted this morning – the jury with the choice between two situations: one involving an innocent person, the second involving a guilty person.
That part of the direction involving the scenario of a guilty person getting in the witness box in the hope that his defence will be accepted and his evidence believed is inconsistent with the presumption of innocence. It undermines the presumption of innocence. It is submitted that, in the circumstances of this case, it is impossible to say that this prohibited direction just sort of neutralised itself out. It ignores the capacity of the jury – or the understandable temptation of the jury to seize on the guilty man alternative.
It is submitted that none of the other directions that were given in this case – the onus of proof, presumption of innocence, how to deal with the accused man’s evidence in respect of certain conclusions that might be reached about it – none of those had the effect of putting to one side this prohibited direction; not in terms – or not as would be understood by the jury.
It must be recognised that the Parliament, in prohibiting this direction, obviously, by looking at the structure of the Jury Directions Act, had in mind that all these accompanying directions would be given – when I say “accompanying”, that is the wrong word – that these other directions would be given in terms of presumption of innocence, onus of proof, burden of proof – they were to be given but, notwithstanding that, this had to go. This had to be removed. This could not be said to a jury with the authority of a judge’s office.
It is a direction that stands apart, in our respectful submission. It stands apart from those directions. There is nothing in terms of the other directions to withdraw it from the jury’s focus, overwhelm it, put it to one side. As the learned trial judge said, it was to be kept in mind throughout the consideration of Mr Tambakakis’ evidence. Now, picking up ‑ ‑ ‑
GORDON J: At trial, defence counsel took issue with it.
MR DANN: Yes.
GORDON J: Along those lines.
MR DANN: Yes. The problem was how to deal with it. The problem was – and that is why further time was ‑ ‑ ‑
GORDON J: Sorry, I was being more specific. The objection which was taken was an objection because the direction brought about this requirement to make a choice.
MR DANN: Yes. It was – but then, responding to something else that was said this morning, the question was what to do about it. Time was given for all sides to consider what to do about it and it was thought it would make it worse – the situation would get worse if there was an effort to go back to that particular direction. What was thought of – well, can you emphasise these other directions – but, in a sense, what was said was the damage has been done here.
In response to a question from Justice Gleeson this morning, it is submitted that if ever there was a case where it can be seen that this direction was unlikely to neutralise itself or peter out to some sort of boring or barren nil‑all draw – and “barren” was the word that was used by the majority in the Court of Appeal – it is this case, because you had Mr Tambakakis giving evidence that he was guilty of being previously involved in the illegal importation of steroids; previously involved in the illegal distribution or trafficking of steroids; that he was guilty of attempting to do the same thing again in terms of the shipment, subject of this trial.
So, the idea that he was an innocent man who could do no more than get into the witness box, in our submission, was unlikely to have any particular traction at all in the particular circumstances of this case. That is one of the problems with casting this direction in terms of an innocent man – or an innocent person and a guilty person, because the question – well, the defence case, he was guilty of attempting to possess steroids; on the prosecution case, he was guilty of attempting to possess cocaine.
STEWARD J: Mr Dann, can I ask you a question? If the judge had ignored counsel’s request or indeed if counsel had submitted otherwise – namely, please correct the misdirection expressly, words to the effect to the jury, what I said there is wrong, please disregard it – would you still say there was a substantial miscarriage of justice?
MR DANN: Yes, because the concept involved here is a guilty man going before that jury and trying to pull the wool over their eyes – that jury who were considering that case.
STEWARD J: But – even where the judge says, what I said to you about that, please disregard it entirely, it is wrong?
MR DANN: Yes, because the judge has already, with the weight of his office – in this case his office – indicated this is a significant matter, this is how you should approach this evidence, you have got to keep it in mind, it is significant. To go back to try and correct it would have involved a judge returning to that concept – look, I told you, I gave you a direction about guilty people going to the witness box, he would have to return to it, then he would have to try and ‑ ‑ ‑
STEWARD J: Does that mean that, at least in credit cases and practically speaking, a breach of 44J can never be corrected?
MR DANN: No, it depends ‑ ‑ ‑
STEWARD J: I said in a credit case like this, and practically speaking.
MR DANN: Any direction, in terms of the assessment of the accused person’s evidence where that accused person gives evidence and where his defence relies on the jury fairly accepting his evidence, any misdirection – or put another way, the giving of a prohibited direction – it is going to be very, very difficult, yes, to be able to sort of put that out of the jury’s mind. I told you about this concept of the guilty person going to the witness box, but just put that to one side. Some things ‑ ‑ ‑
EDELMAN J: What is the point of section 7(1)? Section 7(1) is not only a dead letter, but it actually makes matters worse, because the trial – on your submission – is completely off the rails and cannot be corrected, and yet, section 7(1) requires the trial judge to correct the misdirection in any event.
MR DANN: Yes, but it is potentially directed to a whole range of situations, including comments by defence counsel in their address, comments by prosecutor in his final address. There are, as I indicated, some directions that – or I was about to indicate – some directions that can be corrected, some that cannot. Some mis‑statements of the evidence by a judge, for example – sorry, I told you about this evidence, I actually got that wrong, or I should have included this – some things can be corrected, other things cannot. It was not – as was pointed out this morning – it was not just the defence counsel who arrived at the proposition that this was going to get worse.
EDELMAN J: Could you give me an example, on your submission, of a direction that, in the words of section 7(1) is:
prohibited by this Act –
which could be corrected in such a way that there would not be a substantial miscarriage of justice?
MR DANN: No, I was more thinking of a suggestion or statement by prosecution or defence counsel when looking at 7(1). In particular, that is why I was talking about context previously and responding to the previous question from Justice Steward. Where the prohibited direction is going towards a question of this man’s evidence in the trial – which represents his whole defence – and where the prohibited direction allows for a mode of reasoning which is totally contrary to the presumption of innocence, there is nothing that could be done to correct it.
Now, the resort to the previous cases that has occurred by way of our learned friends – and in the first place by the majority in Court of Appeal – it is respectfully submitted that that resort was misplaced in terms of the resort being made in an effort to resolve the substantial miscarriage of justice. It is our submission it would be a strange thing if Parliament has specifically identified a number of cases where this direction was given a tick, so to speak, in the end, to identify those cases so that the rule or the principal emerging from those cases had to be abolished. It would be a strange thing that the substantial miscarriage of justice question could then be resolved in any shape of form or on any basis by having resort to those same cases, which is what occurred in terms of the majority here, and what is attempted again in this Court.
Similarly, the reliance on the ability of a prosecutor to make submissions about an accused person’s evidence as another way that the substantial miscarriage of justice question can be resolved is, in our submission, similarly misplaced. And whereas there is some sort of notion of subtlety – a subtle difference between a learned trial judge referring to the submissions of counsel and a direction of law – it is our submission there is no such subtlety.
The distinction is fundamental, that has been recognised by this Court. It played out in this particular case where you had the learned trial judge repeatedly telling the jury they had to obey his directions and this was – I think there is no dispute – just that. It was a direction of law that the jury had to obey, they had to keep in mind – they were not told to disregard at any stage, and it infected the whole consideration of Mr Tambakakis’ evidence.
STEWARD J: Just on that issue, do you read the paragraph that follows the misdirection of prohibited directions, you call it as possible qualification on the proposition that the jury had to follow what was said in this direction? The words “in the end, it is for you to determine”, and so on?
MR DANN: Well, it is really more a question of how the jury would – if you are asking me what the judge was attempting to do, or what the jury would take from it?
STEWARD J: It is just that you said before that the jury would have considered the misdirection – something they had to obey.
MR DANN: Yes.
STEWARD J: I am just asking whether that might be tempered by what follows in the next paragraph, from the jury’s perspective?
MR DANN: No, I understand why your Honour is putting that to me but in the circumstance of this particular passage – so lines 13 to 24 – and its content and the picture that evokes of a guilty man or guilty person deciding 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.
That is likely, rather than petering out to this nil‑all draw, that is likely to capture the imagination of the jury. They hear directions and have heard and would have heard directions about the presumption of innocence. Here they are hearing a direction about almost the presumption of guilt – an assumption of guilt accompanying their consideration of Mr Tambakakis’ evidence all the way through.
GLEESON J: It goes quite a bit further then, the direction that is prohibited by 44J in that sense, does it not?
MR DANN: Yes. It is talking about his defence. His defence does not have to be accepted in any shape or form for him to be found not guilty. It ties in and gets back to that very, very unfortunate choice that is set up by that direction of between guilt or innocence. The added difficulty here is that the question we say had been posed – maybe not directly – but had been posed in a way by the learned prosecutor in his final address when he asked – or raised the issue of why someone would get into the witness box and tell such an implausible story. If that is married up with that direction, that is a very unfair position for an accused person to have to face in this particular trial.
So, in all those circumstances, it is submitted that it is impossible and should have been impossible for the majority in the Court of Appeal to have come to a conclusion that it was just an innocuous error, it is impossible and should have been impossible for the Court of Appeal to come to a conclusion that the onus of proof or the presumption of innocence was not undermined, and it is ‑ ‑ ‑
KIEFEL CJ: Why do you say it was necessarily undermined? I know that is the view of Justice Priest, but how do you put it that they were undermined?
MR DANN: Yes, thank you, your Honour. The only assumption or presumption with which the jury were entitled approach Mr Tambakakis’ evidence was the presumption of innocence. Here they were being directed as a matter of law about – it is perhaps too high to call it a presumption of guilt, but a scenario of guilt as was, to use the term used by my learned friend Mr Walker, a starting point for the consideration of his evidence, and to bear that starting point in mind, one of the two starting points, that choice between the two, all the way through.
GORDON J: I had understood that you were relying upon the language of the misdirection itself where it talks about a guilty person and his defence, so it affects, does it not, both on your argument, both reversal of the onus of proof and removal of the presumption of innocence.
MR DANN: Yes, your Honour.
GORDON J: And possibly made or probably intensified – or maybe that is the wrong word – but reinforced, at least, by what starts at the beginning and at the end of that one paragraph that the jury are directed twice to consider both of these observations when evaluating your client’s evidence.
MR DANN: Yes, your Honour, that is why we say that nothing that follows can remove, or could have removed, what was there set out. So, in that context, it was impossible – should have been impossible – for the majority in the Court of Appeal to come to the conclusion that there was no substantial miscarriage of justice.
We have, in our written response, referred to those cases that speak of the difficulty for the Court of Appeal in reaching a finding as to inevitability when the question – or the misdirection – in this case, it is more than a misdirection, it is a prohibited direction – goes to an issue of contested credibility and those cases can stand in the way of such a finding.
All those cases demonstrate that that can stand in the way of such a finding. We use those cases in the same context to say that all of those cases should also stand in the way of a finding that this was just any innocuous harmless error that could not have made a difference.
Ultimately it is submitted that this is not a case – because of all of that context that I have put to the Court by way of contested credibility – the heart of the trial – I mean, the question of remittal does not arise if the fundamental departure – this Court concludes there was a fundamental departure – but on this second limb that I have been spending more time on – substantial miscarriage of justice in a different sense than fundamental departure – on that limb, in terms of any question of remittal, because any
question of remittal would be bound up in those same problems, in terms of contested credibility, the applicant’s evidence across all those credit issues – the multitude that they were – the appropriate order here should be an order for a retrial rather than remittal – but maybe I am getting ahead of myself ‑ ‑ ‑
GORDON J: Is that relying on paragraph 31 of Baini? In other words ‑ ‑ ‑
MR DANN: Yes. Just excuse me, your Honour.
GORDON J: Where here you say, as I understand it, you have an error, consistent with the submission you have just made, you cannot say that it would not have made a difference and therefore it is up to the Crown to – consistent with paragraph 31 – demonstrate that the conviction was inevitable by reference to the record – and we do not have the record and they have not put forward that argument in this Court.
MR DANN: Correct, yes. They are the submissions to be made on behalf of Mr Tambakakis, your Honours.
KIEFEL CJ: Yes, thank you. Yes, Mr Doyle.
MR DOYLE: May it please the Court. I would like to start by identifying the two vices in the impugned direction that both appellants rely on. The first is that it had the potential to adversely affect the assessment of Mr Tambakakis’ credibility by inviting scepticism or disparagement of his evidence simply because he was the accused. A contention to that effect appears in the submissions filed by Mr Awad at paragraph 33 and in particular at paragraph 36.
Lest there be any doubt about it, that is a complaint that this misdirection was to the same effect as the misdirection deprecated by this Court in Robinson – that the evidence of an accused is to be discounted – treated with scepticism – because they are the accused. Shorn of the element of interest in the outcome of a trial, it is the same problem.
The second vice is that the impugned direction had the potential to define as the issue for the jury’s determination whether Mr Tambakakis was an innocent person or a guilty person, thereby distracting from the true central question of whether the Crown had proved its case beyond reasonable doubt. The best place to find that proposition is Mr Awad’s submissions at paragraph 37.
Mr Tambakakis echoes those complaints and specifically raises, at numerous points, the prospect of this direction eroding the presumption of innocence. Now, I would like to take the Court, if I could, to its decision in the case of Hargraves v R 245 CLR 257. The Court should be able to find this at joint book of authorities, volume 3, tab 20, starting at page 725. If I could take the Court first to paragraph 46.
KIEFEL CJ: Which page of the report is that on?
MR DOYLE: It is page 277 of the Commonwealth Law Reports, your Honour.
KIEFEL CJ: Thank you.
MR DOYLE: My submission is that, properly analysed, both of the complaints the appellants make – both of the identified vices – raise the very question distilled by this Court in Hargraves at paragraph 46. Picking up that paragraph in the second line:
did the judge’s instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt?
That is the issue was it was framed in the court below by Justices McLeish and Niall at paragraphs 154 and 162 of their Honours’ judgment. That is at pages 270 and 273 of the core appeal book, and also by Justice Priest at paragraph 71, and that is at page 243 of the joint appeal book. I do note in passing that, in resolving this fundamental question, the court at the bottom of paragraph 46 said that:
Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge’s charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge’s instructions to the jury deflected the jury from its proper task.
Our case is that that part of the judgment was faithfully applied by Justices McLeish and Niall, but not faithfully applied, with respect, by Justice Priest. To make good this proposition that that question, as distilled by the Court in Hargraves, is the question raised in this case ‑ ‑ ‑
GORDON J: Can I just ask a question about the premise from which you work?
MR DOYLE: Yes, your Honour.
GORDON J: Hargraves was a case, as I read it, which was not dealing with evidence in relation to the accused’s evidence. It was evidence – a direction, I should say, about assessing the credibility of witnesses generally.
MR DOYLE: Yes, and the complaint on behalf of the accused was that, insofar as the direction raised the topic of an interest in the trial, that part of the direction adversely affected – or would have adversely affected – the jury’s assessment of the accused’s evidence, the accused being the party with the greatest interest.
GORDON J: When one goes to paragraph 46, one sees in the opening line a description by their Honours that it:
is expressed at a high level of abstraction –
Is it not, given – and you may be coming to this, and if you are, then I will be quiet – that matters raised by counsel for the appellants is that here we have a qualification or an issue which is that we are dealing with, really, a single‑issue case, i.e., the credibility of Mr Tambakakis and the evidence he gives, and so the focus and the question is slightly different. In other words, it is at a different level of abstraction.
MR DOYLE: Your Honour, in my submission it can be articulated – and should be articulated – at the same level of abstraction. I start with the proposition that the vice identified first is that his evidence was – according to this direction – the subject of an invitation to be treated with scepticism, because he was the accused. That is what was put. That is the Robinson complaint. It is no accident that when this direction was challenged in Victoria across a series of cases, that very complaint was made. Robinson was cited in argument in many of the cases my learned friend Mr Walker has taken the Court to, including Haggag, and McMahon, Franco, and I think Taafe. That was the basis of the challenge, that this direction violated that principle. In substance, that is what I submit that complaint must be.
EDELMAN J: But you accept, do you not, that this direction involved a departure of a trial according to law.
MR DOYLE: Yes. There was an error or irregularity within the meaning of section 276.
EDELMAN J: So, where is this submission going? Is it going to the point that – as in Robinson – you say it is impossible for the applicant to show that the jury were deflected from its proper task?
MR DOYLE: Yes, your Honour, it is an assessment of the result of the irregularity. And distilling the proper question that the vices complained of truly raise. I will be submitting later that it is simply not enough to point to a mandatory provision in a statute like this and say it was breached.
GORDON J: But that was my point to you, that they do not. They have got an additional limit, and the moment you are dealing with the additional bit, that is, it goes to a critical issue in the trial ‑ ‑ ‑
MR DOYLE: Yes, that is ‑ ‑ ‑
GORDON J: Namely, the credibility of Mr Tambakakis, and having – in effect – established that, why is it not for you, the Crown, to establish that the conviction was inevitable?
MR DOYLE: Yes, that is the part I am tackling now.
GORDON J: Which part are you tackling?
MR DOYLE: The fact that this direction is said to unfairly or wrongly impugn Mr Tambakakis’ credibility. Because the way that is put is that this direction tended to undermine his credibility because he fell into the category, potentially, of a guilty person who might decide to get into the witness box.
GORDON J: I speak only for myself – I must say, I find the distinctions that you seek to draw a bit difficult to understand. Here we have got a critical single‑issue case – the credibility of Mr Tambakakis evidence about whether or not he thought it was steroids or drugs, and whether or not a person got into a van.
MR DOYLE: Yes.
GORDON J: The misdirection is given – which you accept is means trial not according to law – and the question is: what is the impact of that misdirection on this single‑issue trial?
MR DOYLE: Yes, your Honour.
GORDON J: We were taken to the way in which the Crown closed their case – they themselves saw it as a critical issue. So, I cannot quite understand what the distinction you seek to draw here is.
MR DOYLE: It is not so much a distinction as teasing out what the reason is that is given as to why Mr Tambakakis’ credibility was a matter unfairly dealt with by the judge.
GORDON J: Well, if we just go to the direction itself, the critical paragraph, the judge says:
there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis’ evidence.
It starts first at that paragraph and it ends it. One is a distinction drawn between someone who is innocent and guilty, and someone who, in response to a guilty person, whether or not you are going to believe and accept his defence.
MR DOYLE: Yes, your Honour.
GORDON J: Why is that not – I will put it neutrally – raising serious issues about onus and presumption of innocence?
MR DOYLE: Well, your Honour, I do want to come to what follows that direction.
GORDON J: That is a separate question, because that is context then. Here, I thought you were just saying they are seeking to challenge it because he is the innocent person – sorry, he is the accused. I do not understand that in this context, having regard to the form of the direction.
MR DOYLE: We might be at cross purposes. When your Honour says that that direction raises serious issues about the onus of proof and the presumption of innocence, that is precisely the point I am trying to make by reference to Hargraves.
GORDON J: I see.
MR DOYLE: They are the fundamental issues that these complaints raise. They both raise this question, whether this direction deflected the jury from the single task they have in a criminal trial of evaluating whether the Crown has proved its case beyond reasonable doubt. The reason to distil that as the correct question is precisely because it answers one of the main points that is put against us by both appellants and that is that this is somehow incurable; because if the problem is that this direction had the potential to divert the jury on questions of the onus of proof and the burden of proof and the presumption of innocence, then it follows that the rest of the charge matters in evaluating whether it truly had that effect.
GORDON J: Would you accept that? Do you not?
MR DOYLE: We say that the rest of the charge matters, but not only that, your Honour, we say that in distilling the problem as being a deflection from the onus of proof, it follows that when Mr Walker says – I wrote down what he said – “these passages deal with something different”, he said that by reference to the impugned charge. Mr Dann said this stands apart. It does not stand apart, because it raises the very issues your Honour put to me.
GORDON J: Well, it raises it in this way. It raises it impermissibly. So, if you are talking about onus and one looks at what follows, it says consistent with the traditional directions about onus of proof and presumption of innocence, but it begs the question: what is the effect of that direction when it is not dealing with it in that language at all? It is dealing with it in a very different way. It is posing a different question for the jury; an impermissible question; a choice.
MR DOYLE: Yes, and then the danger that is raised, that my learned friends to point to, is dealt with. As the trial judge – and I will come to this passage shortly – expressly acknowledged when he was considering what to do about the direction, correct directions on the onus were the way to solve it. Going back and using the same language that the statute had prohibited was inadvisable, but the correct directions the jury received repeatedly on the onus do deal with the problem.
GORDON J: Sorry. I think I now understand. So, your argument is it raises two issues – onus of presumption of innocence – and both those matters were addressed by subsequent directions.
MR DOYLE: Effectively, your Honour, yes.
GORDON J: I see.
MR DOYLE: And so, framing the issue correctly in the terms that are posed in Hargraves allows an answer to this point.
GORDON J: Well, it allows an answer but it does not assume the answer is always going to be yes, does it?
MR DOYLE: No, it does not.
GORDON J: So, is that not what we are here about? I mean, I think there is no dispute between the parties but there is an error; it has the potential – you would say not – to affect onus of proof of presumption of innocence. The question is how bad it is.
MR DOYLE: Well, your Honour, framing the issue in that way does mean, in my submission, that directions to a jury which are expressly addressed to those topics will be effective.
GORDON J: They cannot always be effective, though, can they? I mean, that is why question posed even at 46 is:
deflect the jury from its fundamental task –
As I said to Mr Walker, it is a question of judgment. It was what Baini says. One has to sit there and look at the effect – the nature of the error and the effect of the error.
MR DOYLE: Precisely right – and look at the entirety of the charge; the words that follow immediately, the words on the next page – and all of these are matters I am going to come to. That is precisely the task.
The reason I start with this and put things in this way is because my learned friends, with respect, do not engage in that task. Their submissions are to the effect that the Court can see the vice in it and effectively stop there on the basis that this is incurable. So long as there is language which does not refer back expressly to the direction, or so long as the language is not the same, then that is it; there was nothing more that could be done.
EDELMAN J: But that is why your submission is really – it is not addressing either their first or their second point. So, the first ground that the appellants raise is that any violation of section 44J, that is it – that is a substantial miscarriage. You do not need to look at the rest of the direction. You do not need to look at anything that has said; any violation that the trial fails. Now, that is either right or it is wrong, but you cannot meet that by looking at the rest of the direction because the very premise of that submission is you do not need to look at the rest of the direction.
The alternative argument is that, well, even if they are wrong about that, there was a miscarriage of justice, which the Crown accepts, and it is for the Crown to show that conviction was inevitable. The Crown has not put the whole of the record before us. The Crown has not attempted to establish in the Court of Appeal that any jury must necessarily have convicted. Now, I cannot understand whether this submission now is going to the first point or the second point.
MR DOYLE: The first, your Honour, on that point about the application of Baini in this case, we did put that contention in the Court of Appeal that conviction was inevitable and it was not determined by the majority. The majority put this case into a different category, namely that the court did not need to engage in that exercise of determining guilt or innocence for itself on a review of the entire record when it could determine that the error could not have produced a substantial miscarriage when considering its possible effect in the trial as a whole.
EDELMAN J: That is exactly what Weiss says an intermediate appellate court should not do. There have been differences including in Kalbasi, and I was in the minority in Kalbasi on this point, but the majority in Kalbasi and subsequent cases have said that that is what an intermediate appellate court should not do following Weiss.
MR DOYLE: In my submission, your Honour, there must be room under the Victorian statute, just as there is under the common form proviso – there is no relevant difference here in the wording – for the Court to follow the Kalbasi approach, as Justices McLeish and Niall did, and the correctness of their Honours, having done so – having identified that category of case – has not been put in issue.
GORDON J: I think it has. One only has to read Baini and what I had put – I think it is paragraph 31. If you read 26 through to 31 of Baini, the reality is that, having identified the miscarriage and having identified that it could have or might have made the difference, then it is up to the Crown to put forward the whole of the record and show that the conviction is inevitable, and you have not done so.
MR DOYLE: In my submission, your Honour, it would misread Baini to suppose that it proposed that as the exhaustive way in which to deal with errors or irregularities.
GORDON J: Well, I would be very grateful if you would take me to the passage where you say it is not exhaustive and there is some sort of separate subcategory of class of case which permits this kind of analysis by a court of criminal appeal or a court of appeal.
MR DOYLE: At paragraphs 28 to 29, your Honour – at paragraph 28 in Baini, the Court said that:
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.
I do rely on that expression “in some cases”.
GORDON J: But “evidence properly admissible at trial” means I have looked at the whole record. It means I have analysed the whole of the record, does it not?
MR DOYLE: Yes, and I accept that that is one way in which an appellate court could conclude that there is no substantial miscarriage despite the error, but my submission is simply that that was not the only circumstance the Court in Baini identified.
GORDON J: I think the other circumstance it says that it may be, notwithstanding that you have looked at the whole of the record, you cannot reach the opposite conclusion. It is providing for the situation which exists otherwise.
MR DOYLE: Your Honour, the other passage I was going take the Court to from Baini was its extraction of the extrinsic material at paragraph 34, where their Honours say:
The above conclusions follow from the text . . . but they are reinforced by reference to extrinsic material –
and their Honours quote from the Second Reading Speech to the effect – and I am reading from about five lines down – that section 276, quote:
“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 . . . 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.
Combining that language from the Second Reading Speech with the need that was emphasised by Justices McLeish and Niall below to consider what the result of the error or irregularity was, there must be room, in my submission, under the Victorian statute, just as this Court held there is under the common form criminal appeal provisions, to identify certain errors as not having given rise to a realistic possibility of creating an unfair trial, without ‑ ‑ ‑
EDELMAN J: Without having regard to the whole of the record.
MR DOYLE: Without, in every case, having to examine the entirety of the record. We simply say that the analysis of Justices McLeish and Niall in the court below at paragraphs 149 to 151 of their Honours’ judgment is correct.
EDELMAN J: That has been the view that I expressed in Kalbasi – cases like, I think, GBF, other decisions – but that has been a minority view for at least five or six years in this Court.
MR DOYLE: Your Honour, I had not taken the authorities post‑Baini to conclude a view that there is no room for an error to be categorised as “innocuous”, as my learned friend put it, and therefore not requiring an entire view of the record. One could conceive of many, many situations in which there is an error or irregularity which should not necessitate an appellate court reviewing the record for itself to determine guilt or innocence. An appellate court ‑ ‑ ‑
STEWARD J: One example would be where there was an effect of retraction of the misdirection.
MR DOYLE: That may be one, your Honour. There is a case I do recall from Victoria where a jury was provided with a map – it is a case called Hughes – I am just remembering off the top of my head. Without consulting counsel, the jury requested a map of an area while they were deliberating and the judge should have brought counsel in to discuss that communication. His Honour did not. His Honour provided the jury with the map and then told counsel later that he had done it. The Crown conceded there was an error or irregularity and, without satisfying itself that conviction was inevitable on the strength of the evidence, the court concluded that there had been no substantial miscarriage of justice; such was the venial nature of the error. The jury were always going to get their map. There must be room, in my submission, in the Victorian provisions, for cases like that. Their Honours, when they said Baini did not purport to exclude that category of case, must be correct.
If I could turn back to the misdirection itself and tease out what we say about its effect – I bear in mind that I have leapt into this second way the case is put. I do propose to come back to the question that Mr Walker’s submissions focused on, whether one could say there was a substantial miscarriage simply because of the breach of section 44J.
EDELMAN J: Just so I understand this submission, then. This submission is that your answer to this alternative, or this second way the case is put, is that this is an error which one can look at it in its context, without reviewing the whole of the record, and determine that this error is so insignificant that conviction could still be said to be inevitable, and that it is not necessary to engage in the full vice exercise of considering the entirety of the record.
MR DOYLE: Yes, your Honour. It was so unlikely to have any effect on the trial that, yes ‑ ‑ ‑
EDELMAN J: Yes. There is no alternative case that the Crown puts, that one needs to look at the whole of the transcript and all of the evidence, including the decision of the jury, and having had a look at all of that, could then conclude that conviction is inevitable.
MR DOYLE: Your Honour, we have not abandoned that case. We have not put that in this Court because we put it to the Court of Appeal and it was not determined on that basis. We are conscious that this is not a court of criminal appeal. That exercise would involve this Court looking at CCTV footage, listening to audio as I invite the Court to compare what is on the audio with what they can see on the footage, going through exhibits – a very, very large exercise that the court below simply did not undertake.
That is why, if this Court accepts my learned friends’ argument, we would say the question of inevitability – if the Court gets to it, if the Court is not satisfied by my submissions about ‑ ‑ ‑
EDELMAN J: Will you say it has to go back on remitter because you are not running the argument again?
MR DOYLE: Yes, we would ‑ ‑ ‑
GORDON J: It may demonstrate the error in their Honours’ approach – is that they should have. When it comes up, it comes up on all grounds, so one can look at it, rather than have remitter. In terms of finality – I mean, it is the very reason why we have the approach adopted in Weiss.
MR DOYLE: Your Honour, I would submit that it is understandable that their Honours took the view they did in the circumstances, that it was not necessary to determine the point. It might have been better if the point had been determined. I think Justice Priest only dealt with it in a single line.
Returning then to the misdirection itself – again, it is at page 32 of the joint core appeal book – I will focus initially on what I have called the first vice in this direction that has been identified, about undermining credit on the basis that Mr Tambakakis was the accused. Can I begin with the three observations which immediately precede the direction and begin at the top of the page? First:
that Mr Tambakakis gave evidence . . . that he chose to . . . he did not have to –
Secondly, that he:
undertook to tell the truth –
And thirdly, that by doing so, he:
submitted himself to cross-examination which is the way lawyers test a witness’ credibility and truthfulness –
These are all preliminary observations which can tend to support, particularly when those same remarks are made by defence counsel as they routinely are, can tend to support the credit of an accused. Submissions just like those are made commonly by the defence for good forensic reasons.
It is useful at this point to contrast them with what the prosecution might say about the choice to give evidence. The prosecution might well say, and often does, that in reality the accused had no other option because the evidence against them was otherwise so overwhelming. Now, I will return to these points as we go because they are important in understanding the historical role that these directions have played and, importantly, the ongoing role of the substance of these statements that section 44J refers to as submissions that are made by the parties and that will continue to be made by the parties to a trial.
Addressing directly the two factors, there are really two possibilities that the trial judge raises. In my submission, they would inevitably occur to a jury when confronted by the evidence of an accused person. Factually, they are accurate. They are the two possibilities for what is going on. And that is one reason why they would not escape a reasonable jury.
I will take the Court back to the case of Haggag in a moment but, one point to note in passing was that Justice Callaway quoting the Full Court in Silk as saying that the idea that an accused might get into the witness box in order to overcome the evidence against them would be:
quite obvious to any moderately intelligent human being”.
And those two possibilities are also highly likely ‑ ‑ ‑
KIEFEL CJ: That is not quite the same thing as the trial judge saying, this is how you approach the question, which suggests to them that it is both correct and rational and consistent with the presumption of innocence and onus of proof.
MR DOYLE: I accept that they are different things, your Honour, and under the current version of the Act, the trial judge can still put these points to the jury, but they must be couched as points the parties have made.
KIEFEL CJ: Well, the parties have to have made them.
MR DOYLE: Precisely. But even that, as I will be submitting, suggests that ‑ ‑ ‑
KIEFEL CJ: But that would usually be to correct them, in light of the prohibition that the trial judge would probably be correcting any statements to the effect that there is some assumption that you make.
MR DOYLE: In my submission, no, your Honour, that would be an incorrect construction of the Act. The trial judge would not be correcting them at all. The trial judge would be putting them to the jury as legitimate arguments. That is the effect of these provisions. It may be best, instead of going back to the direction in the common law, to deal with the statute, because there were some points put about the way the statute works which, in my submission, were wrong, and I probably should deal with them now.
Could I commence with section 44J itself and the statutory note my learned friend refers to down the bottom. The section says that the trial judge must not direct the jury about those matters, the accused being “under more stress” and the two competing reasons why the accused might have given evidence, n the statutory note which forms part of the Act, it specifically says that that section, that prohibition:
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.
What that note, in my submission, must be taken as expressly contemplating, is that the parties might put their cases on the evidence given by the accused in precisely the ways specified in section 44J. The note would not be there otherwise; it would not read as it does, otherwise. Section 65 then describes the obligations of a judge in summing up, and my learned friend has referred the Court to that, but nothing in that section ‑ ‑ ‑
KIEFEL CJ: Well, the note is saying, no more than that it is attempting to summarise section 65, you do not place any greater weight on a note than that, do you? So, you actually go to section 65 to see what it says.
MR DOYLE: Yes, but I do – the note occurs in a particular context, your Honour. Because there are statements and suggestions that are prohibited by the Act. That is, the parties are not allowed to make them.
KIEFEL CJ: And that is what section 7 refers to? Is that what you were going to come to?
MR DOYLE: Yes, your Honour. The nature of the prohibited statements and suggestions are important in this case. The most important is that which appears in section 44H. I have earlier framed the real issue underlying the complaints in this case by reference to Hargraves and Robinson. The Robinson suggestion, if I can put it that way, that an accused is a less credible witness because of their interest in the outcome of the case – that is, an automatic discount is to be applied to the evidence of the accused, is specifically prohibited by section 44, but not – just as a direction by the trial judge – the parties themselves are prohibited from making that statement.
Your Honours will note that next to section 44, in the margin, is a note that this section was inserted by Act No. 37/2017, the very same amending Act which inserted section 44J. So, while the vice underlying both of these directions is essentially the same, Parliament has distinguished between them and has specifically preserved the ability of the parties to make the points in section 44J to put their cases on that basis but has barred them from doing so in relation to 44H. But that this idea that Parliament itself was completely reversing the common law authorities in Victoria on this direction is wrong – or at least, at best, only partially true.
Not to be given as a direction, yes, but a critical part of all those authorities is that they distinguish between the Robinson‑type direction and the statement which now appears in 44J(b)(i). They are treated differently by this Act. So, insofar as the reasoning in Victorian authorities makes that distinction, that reasoning lives on. It lives on in the ability of the parties to make the same point. And it lives on in the ability of the trial judge to present that very point to a jury as a legitimate one for its consideration. The trial judge cannot do that with the Robinson suggestion which is prohibited outright by section 44H.
Not only that, but as the Chief Justice has raised with me, section 7 would oblige the trial judge if the parties made a statement to that effect – that is, to the Robinson effect, that this accused needs to have their evidence scrutinised more carefully because they are accused and they have got an interest in the outcome. The trial judge is obliged by section 7 to correct that statement.
I will come in a moment to another important statement to a similar effect that would need to be corrected, pursuant to section 7 but earlier, my learned friends were making submissions, the potential role of section 7 was raised as a means of remedying a misdirection of the kind given in this case, in contravention of section 44. That is not, in my submission, the relevant section. Section 7 concerns statements by prosecutor or defence counsel or misapprehensions that emerge in jury questions.
GORDON J: Is that right? You look at the footnote or the note to section 44H, it seems to suggest it provides for correction of statements or suggestions to the contrary of this provision to include the trial judge.
MR DOYLE: Your Honour, section 7 does not refer to the trial judge. That is not to say there is no means for the trial judge to correct their own statements. There would be an inherent ability to do that, which the assessment would touch. But there is also section 16 ‑ ‑ ‑
KIEFEL CJ: But that is why you do not read a note as completely accurate in its summary of the section. You go to section 7 to see what is intended there.
MR DOYLE: Yes, your Honour. Section 7 just refers to statements or suggestions by counsel and by a jury. Section 16 requires trial judges to give directions that are not requested by parties where:
there are substantial and compelling reasons for doing so –
So, if there has been a mistake which might deflect a jury from its fundamental task, that is the sort of mistake which would fall within this provision, regardless of what the parties have to say about it.
The other provision essentially relevant and to the same effect as 44H is section 42. That section prohibits statements and suggestions – again by the parties as well as the trial judge – suggesting that a conclusion of guilt could be drawn from the silence of the accused, or an inference drawn against them from their failure to provide an explanation for facts within their own knowledge.
That is a suggestion, again, that was dealt with by this Court in Hargraves. In Hargraves this Court cited RPS as an example of a case where because an adverse inference was invited by the judge on the basis of silence, and a jury was thereby being deflected from its fundamental task in a criminal trial, just as they were in Robinson. Tellingly, when one looks at the kinds of examples given in Hargraves for where a jury might be deflected from its fundamental task, the legislature has itself distinguished between them and made it clear that there is something fundamental about inferences concerning the right to silence, and about arguments that an accused’s evidence is less credible due to their interests, but not something fundamental about the very direction we are concerned with.
My learned friend’s primary argument, that this is a substantial miscarriage simply by reading of this legislation cannot stand for that reason alone, particularly when one considers the kind of language in which this direction was cast, and the kind of language which would permissibly be used under this Act to remind the jury of the parties’ arguments. Because if the prosecution says – as it is entitled to say – the accused got in the witness box and took their chances because they have no choice; the evidence against them was so overwhelming otherwise, they decided to take a risk and tough out cross‑examination, the trial judge could, and especially if it was a central part of the prosecution’s submission, should, put that point to the jury as one they should consider. Now, compare that, permissible under this current version of the Act, with what the trial judge did here. Firstly, his Honour at ‑ ‑ ‑
KIEFEL CJ: Well, the prosecution here did challenge motive, did they not, for giving evidence?
MR DOYLE: No, your Honour, they did not.
KIEFEL CJ: You say that passage that Mr Dann took us to does not amount to a challenge?
MR DOYLE: Not in motive, your Honour, no. If I could just retrieve the relevant part, it is in the core appeal book, I think.
GORDON J: It is in the appellant’s book of further materials, I think at page 143.
MR DOYLE: Yes, I am grateful to your Honour. Appellant’s book of materials, page 143, if I could go to that now, Mr Dann has only ever quoted the first couple of sentences from that passage. It begins at line 11 on page 143:
There are various explanations that can be offered for why an accused person in Mr Tambakakis’s position gave evidence in the witness box which appeared to be so implausible.
Now, if you stop there you might think that what this is a reference to is the decision to give evidence and the motive to give evidence. But if you read on it really only refers to the contents of the evidence itself and why it was that the evidence was so implausible. That is, it might be suggested that an accused is under pressure in this environment; being cross‑examined by a barrister would be stressful:
But while the evidence he gave and the manner in which he gave it is fresh in your minds please consider this because you may have this kind of argument by Mr Lloyd, I don’t know.
And sure enough, the argument by Mr Lloyd did come and Mr Lloyd invoked what he anticipated would be the direction of the judge that an accused is under more pressure. It turns out, of course, that that is part of the direction which was abolished by section 44J. One can see here just a little illustration of the type of forensic contest that is dealt with by directions like this:
Is that really a plausible explanation for the kind of evidence which emerge? Was the tone and style of the cross‑examination of Mr Tambakakis that I adopted, bullying or hectoring or prone to elicit answers which were simply the product of pressure?
I suggest to you that he was given more than a fair opportunity to tell his story and to give his evidence.
So, that is not, either expressly or by implication, an appeal to his motive in getting into the witness box; it is talking about why certain unbelievable evidence emerged and the manner in which that evidence was given and anticipating an argument which would be made – and was made – about why that evidence was implausible. It is because it was largely made up of lies. That whole passage has really got nothing to do with motive at all, in my submission.
It is perhaps easier to understand its resonance – and I will need to go to these passages in the transcript to make another point about how this affected Mr Tambakakis’ credibility at all. If I could take the Court briefly to just two passages in the cross‑examination – which has been reproduced beginning at page 109 – while we are in the appellant’s book of further materials.
I was here cross‑examining Mr Tambakakis about what happened with this van – the Kia van – which carried the consignment critically from King Street, Airport West to his warehouse up the road. But before it got there, Mr Tambakakis himself dropped it off for it to be loaded with the printers at a house in Coburg. He backed it into the driveway, and he walked away, to be collected by Mr Awad who was driving around nearby in Coburg. They then drove to Airport West where they rendezvoused with the van. So, I was asking him, line 12 – the plan was – sorry, I am in the wrong passage, your Honour. I will come back to that one. I am referring to page 123 – apologies.
These are two parts in the evidence where Mr Tambakakis himself complained about the kind of pressure he was under. The first one is the one I have just given the factual context for, at page 123. Line 10, I put to him:
You knew it was that person who would be driving the van back to King Street?‑‑‑I did not know that at the time, no. I was asked to drop a van off by Mark –
who, he said, was organising this whole operation from Thailand by the Wickr app:
and that’s what I did.
I put to him at line 20:
But you knew when you did that that the van would be loaded at that address with the printers?‑‑‑I don’t recall if I knew it at that time.
KIEFEL CJ: I am sorry, what is this going to? What is this telling us?
MR DOYLE: If we go across the page, as I pressed Mr Tambakakis on this topic, he said, in protest at line 29:
Mr Doyle, I am, I am quite nervous here answering your questions –
and that was the same answer as the only other passage I wanted to take the Court to, at 109 to 110. I will not read any more of it out, but the point of it is this: I was pressing him about why it was that Mr Awad did not get in the van and, in the end, the explanation he gave the previous day collapsed and he said:
Could be for any number of reasons. You have to ask him.
This is at page 110. So, a very, very critical question in the trial. And the next thing he says:
It’s quite nerve wracking sitting here.
KIEFEL CJ: How are we using this?
MR DOYLE: This is relevant for this reason, your Honour; that one of the directions that the trial judge gave, which is specifically prohibited by section 44J, is the direction that an accused person is under more stress than any other witness.
KIEFEL CJ: Yes.
MR DOYLE: He complained at two critical points in the cross‑examination that he was nervous and effectively under pressure. His counsel put to the jury that he was under pressure and the trial judge would direct them accordingly. I put to the jury in the very passage Mr Dann relies upon that these answers were not the product of pressure. So, one of the factors to weigh in the balance – and it is not simply to be dismissed – is that his credit was, at least in one sense, unlawfully bolstered by the giving of this very direction, contrary to section 44J, on quite an important forensic point. The contravention of the section did not all go one way.
KIEFEL CJ: I see the time. The Court will adjourn until 2.15 pm.
AT 12.49 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2:14 PM:
KIEFEL CJ: Yes, Mr Doyle.
MR DOYLE: May it please the Court. Just to commence with a preliminary point, we have taken some further instructions over luncheon break, and the Commonwealth does not persist with the contention that this case should be remitted if the Court concludes that there is otherwise a substantial miscarriage of justice.
KIEFEL CJ: Thank you.
MR DOYLE: Before returning to the direction that was given, could I take the Court to two passages which help place it in context? At page 14, the core appeal book, the trial judge directed the jury in conventional terms that while they were bound by his direction with law, they were not bound by comments that he might make about the facts of case. I have there paraphrased what appears at lines 9 to 14. His Honour went on at line 17 on that page to say:
If I do happen to express any view or make any observation about the evidence or questions of fact in this case, you are not in any way bound by it.
GLEESON J: You are not suggesting that the direction that we are calling a misdirection is qualified by this?
MR DOYLE: Only this, your Honour, that the word “observation” has a particular resonance because that is how his Honour styled the direction of the jury as an observation on facts. My submission is this: that, ultimately, whether this can be characterised as a comment or direction is not really the issue. It is clearly a direction within a meaning of the Jury Directions Act, but it is also an observation about the evidence, and the language that his Honour uses in the direction – which I will come to – is different from the mandatory and more emphatic language in which his Honour expressed directions of law about the onus of proof and the burden of standard of proof.
GLEESON J: But you are not saying that the jury would have listened to what is said here at 14 and then listen to what is said at 32 and thought, well, this is a comment about the facts.
MR DOYLE: Yes, I am saying that that earlier remark does have a bearing on how they would view the direction. I rely more, your Honour, on the inherent content of the direction, and the fact that it contains no prescription or recommended mode of reasoning for how the jury resolved this issue. It does not suggest one way or the other that the accused is a guilty person toughing it out or an innocent person doing all he can. It just sets the forensic backdrop against which the jury then directed on their true task. But I do say that comment, that direction there about observations not being binding is relevant to how the jury would have understood this. More relevant is the content itself. The only real recommendation they have given, apart from weighing the two comments, is to treat the accused like any other witness. That is the end result.
GLEESON J: Is that right? How is it to do that when it is only told to take into account these two factors in relation to Mr Tambakakis?
MR DOYLE: Yes. That is where Parliament took the view that it is not helpful, it is confusing and should not be given, because the jury are being told to consider these two options – and though they would represent, in many cases, the forensic landscape, they are then told to take a middle course and treat the witness like any other, which is the opposite of what they have just been instructed on. It does not help them.
GLEESON J: Why would they listen to the instruction that you should treat the accused’s evidence in the exact same way, having just been told something completely different?
MR DOYLE: It is the only instruction that resolves what is otherwise – to be frank – a fairly useless set of observations. It does resolve it for them. They do not need to consider one or the other, because the recommendation is that they do neither. That part of the direction has been held in Victoria, in a series of cases, to have been effective, and as ‑ ‑ ‑
GORDON J: But no longer. We have got ‑ ‑ ‑
MR DOYLE: That part of the direction still exists, your Honour, and would no doubt be given in a case where the parties made these points. There is a section I have not taken the Court to in the Jury Directions Act/ It is section 44I, which concerns directions that the ‑ ‑ ‑
GORDON J: Is that not at the request of defence counsel?
MR DOYLE: Yes. Defence counsel can request – pursuant to that section – that under subsection 2(c), a direction be given that:
the jury must assess the evidence of the accused in the same way that the jury assesses the evidence of any other witness –
Again, one could have under this statute a very similar circumstance where, if the parties make these points – the Crown says they were toughing it out and the accused says he was doing all he could – the trial judge could, at the request of the defence, give this balancing direction that they treat the evidence of the accused the same as any other witness, and we would be in the same position.
Just before I go back there, the final passage that preceded the direction that is relevant is on pages 20 and 21 ‑ ‑ ‑
GORDON J: Sorry, could you put that proposition again? I did not understand what you just said then. You want us to go to page 20 and 21.
MR DOYLE: Yes, of the joint appeal book. This is a passage which addresses the evidence given by Mr Tambakakis which precedes the impugned direction; where, at the bottom of page 20, his Honour emphasises his expression, the presumption of innocence, and then, at the bottom of that page and over the top of the page, the burden of proof on the prosecution, and goes on line 2 on page 21:
The accused does not have to prove anything. And even though Mr Tambakakis gave evidence in the case, he does in any way assume some evidentiary onus in doing so, and I will explain that to you in due course.
The prosecution must prove the accused’s guilt beyond reasonable doubt.
So, they have already been given that direction on the onus of proof and the burden and the fact that it does not change by Mr Tambakakis getting in the witness box before the impugned direction is then given.
Now, in going back to the direction, I would echo the point made by the majority of the court below that the contrasting positions give no hint or clue as to which apply and when combined with the direction that in the end the jury should treat the accused’s evidence in exactly the same way as that of any other witness, they really suggest that wondering about the accused’s motive and giving evidence is going to be, if anything, a barren inquiry.
Earlier, I made the observation that that direction, considered as a whole, has been held in Victoria, in numerous cases, to be effective. If I could just refer briefly to one part of a gag which my learned friend did not refer to – he did refer to the part where Justice Callaway’s judgment which is most often quoted. Again, this case is in volume 4 of the book of authorities at tab 33. The true complaint in that case was about a direction that referred to a motive of self‑survival. That direction is at the bottom of page 595 of the judgment and the top of 596. In the course of his argument that that direction violated the principle in Robinson’s case, Mr Priest, for the accused, also referred to the traditional direction the jury were given, which is reproduced at page 600 of the judgment:
the Crown might argue –
the direction went, and this is about halfway down the page:
that this is something that a guilty man might well do. A guilty man might reason, ‘Well, I will go into the witness box, I will pledge my oath to my testimony, I will brazen it out –
And then there is the contrast with what the defence says:
‘What more can an innocent man do?’
Again, I note in passing that this is often the pattern when we look at this direction in these old cases. It is replicating arguments. Over the page, his Honour Justice Callaway records the argument for the appellant that this may have – this is at the bottom of the third paragraph, halfway down the page:
In the context of this case . . . did nothing to dispel and may well have reinforced, the prohibited direction or judicial invitation earlier in the charge.
Justice Callaway’s conclusion, at the bottom of page 601, is:
The jury were not being invited to discount the evidence of the applicant because he was the accused. The point was simply that, according to the prosecution, he had confessed to these offences and the only way he could overcome that was to go into the witness box.
So, his Honour is rejecting the very mode of reasoning that these appellants are inviting this Court to accept. The same comment could be made, he goes on, about an innocent person. In the words of the Full Court in Silk, it was:
“something which, in any event, must have been quite obvious to any moderately intelligent human being”.
Just pausing there, although the view taken by Parliament that these directions were confusing and unnecessary is entirely understandable, if they have one redeeming feature, it is this, that they address a point that firstly would occur to a jury that is often raised by the parties and guide the jury through it in a way that does not compromise the burden and standard of proof. Justice Winneke’s conclusion in McMahon I think was already referred to by my learned friend at paragraph 29, where his Honour said:
I am left in no doubt that the jury were properly directed as to the manner in which they were to approach the evidence of the applicant; and that they would, themselves, have been left in no doubt that they were to regard his evidence – and assess it – no differently than the evidence of other witnesses in the trial.
GORDON J: Is this going to the first ground or the second ground – this submission?
MR DOYLE: It is – the first. There is an inevitable relationship, your Honour, between the two insofar as the statute does, in the ways that I have described, preserve the position to a point.
EDELMAN J: But how can it go to the first ground? The submission that is put against you on the first ground is that Parliament has given an express prohibition against something, and that that express prohibition of its very nature means that there will be a substantial miscarriage of justice in every case. Now, if that is right, taking us to the older cases is neither here nor there. If it is wrong, taking us to the older cases is neither here nor there.
MR DOYLE: Well, your Honour, it relates to the first ground only in this way, that Parliament has not abolished, as it has with other statements that can be made to a jury, the statement altogether. Juries will still hear this made.
GORDON J: It is significant – the Chief Justice put this to you before lunch. It is the significance of the trial judge saying it, absent that kind of exchange between counsel in their submissions with the jury.
MR DOYLE: Yes.
GORDON J: That is what this is directed at. It is the judge expressing a view that there is a choice to be made. It has an imprimatur attached to it.
MR DOYLE: Yes, and on that I need to get to the second vice that my learned friends say, and that is whether this was an invitation to make a choice, whether this was truly and would have been understood by the jury as being a definition of their task to choose between the two possibilities. Now, it is not presented in that way. It is presented as two observations that they should consider, and if there is any danger that they thought for a moment that their task was to place the accused or the evidence given by the accused in one category or another, that is dispelled by what the judge immediately goes on to say. On the next page, page 33, his Honour says – and this is the emphatic language I was earlier referring to – this is at lines 12 and 13:
It is also essential, and this very important in this case, ladies and gentlemen, that it is for the prosecution to prove its case beyond reasonable doubt.
The jury would have understood what “important” in this case means, because the accused has given evidence, because that is immediately what his Honour goes on to observe:
It is not for Mr Tambakakis to prove his innocence. Now, this has not changed simply because he has decided to give evidence.
This is the really critical part, in my submission:
This means that you must not find him guilty if you reject his evidence, if you decide to reject his evidence.
His Honour goes on to explain what kind of conclusions the jury could draw if they do not believe him, effectively, and then says:
If you arrive at those conclusions, and I am not suggesting you should one way or the other, it is entirely a matter for you . . . you simply put his evidence to one side –
Now, when one considers what it would mean to put the accused in one of these categories that his Honour earlier described, the risk that my learned friends are pointing to clearly is the second category mentioned; the guilty person who is toughing it out. The jury have been expressly told by this direction to not reason in precisely that way. If you reject this man’s evidence, you do not – you do not – suppose that he is a guilty person. You put his evidence to one side and consider whether the Crown has proved its case. Directions to that effect are given on pages 34 and 35.
In my submission, it is somewhat telling what occurred when the mistake was noticed and Mr Lloyd – for Mr Tambakakis – raised it with his Honour, there was a discussion about what to do. Mr Lloyd conceded at page 46 of the joint appeal book that it was a balanced direction, but before that, his Honour at lines 9 to 14, is discussing what to do. His Honour said:
I did go on and say that he assumes no onus of proof, that you can put his evidence to one side. I said that if it’s reasonable – if you accept what he said is reasonably possible then you would find him not guilty . . . And I’m happy to reemphasize that. Which is what I’ll do.
His Honour was expressly raising what would be required – if anything – to correct it, and Mr Lloyd said over the page:
MR LLOYD: No. But I do think if Your Honour tries to correct it ‑ ‑ ‑
HIS HONOUR: It will just get worse.
MR LLOYD: It’s just going to get worse.
HIS HONOUR: Well we can consider that overnight.
This goes to the point that Mr Walker raised earlier today. Could anything have been done? In the judgment of very experienced trial counsel of the time, using language which referred back to the misdirection would have been worse than doing what his Honour suggested, which is giving directions that emphasised again the burden and standard of proof. That is exactly what his Honour did in passages I will come to now – re‑emphasised the burden and standard of proof, and then by the end of the charge, there is no further exception taken. So, to now say that it was a defect that express words were not used describing, referring back to the misdirection, is not a point which – in my submission – can avail the appellant.
If anything, the fact that the trial played out that way suggests that there was no substantial miscarriage after all of the directions on the onus and burden of proof were given. We have cited in our written outline the critical parts of the burden and standard of proof that were the subject of the charge. I will only go to two more. The first is at page 92, commences at page 92 of the core appeal book. This is the very next day, when his Honour reminds them of what he had said yesterday, only in these terms:
Now, as I told you yesterday, Mr Tambakakis gave sworn evidence in his own defence. And there are four broad conclusions that you may reach about this evidence. And these are directions of law.
His Honour goes through them: if you think it is true, if you are not sure, if it is reasonably possible – and I have skipped ahead to the next page, at the top, on line 4 – in all those instances, you find him not guilty. Then, again, what I submit is the critical part in the answer to this point that the jury were being presented with this choice as if it were their task to choose:
As I explained to yesterday, if you reject Mr Tambakakis’ evidence, simply put it to one side. If you’re not satisfied of its truthfulness and reliability, you put it to one side. Simply because you reached that conclusion it does not mean that you therefore find him guilty.
That, again, is telling them very clearly that it is not their task to choose between the two categories earlier expressed. Even though in this case there was clearly a robust forensic contest about the credibility of Mr Tambakakis’ evidence, there actually was no suggestion from the Crown that he was motivated to tough it out, per se. In the respondent’s book of further materials, I have extracted just one page from my closing precisely because it tends to reinforce the very kinds of directions I have just been going to. This is the respondent’s book of further materials, page 4 – I have just finished a critique of part of Mr Tambakakis’ evidence, and I said:
So what do you do if you find, as I suggest you should, that none of that evidence is to be given any credence at all? You don’t convict a person of a criminal offence because you don’t believe them and you don’t convict a person of a criminal offence because you think they’re lying. What you do when you hear evidence like that is to put it to one side and you look back again at the Crown case because the burden is on the Crown to prove these offences beyond reasonable doubt and you look at the strength of the evidence the Crown’s presented.
Now, that passage coming from the trial prosecutor only assists in neutralising any risk that the jury would have considered it their task to put Mr Tambakakis in the category of a guilty person because they did not believe him on the basis that he was just toughing it out. That was not their job, and nothing the trial judge said suggested it was – and nothing I said suggested it was.
Now, that deals with my submission ‑ apart from the additional matters we have raised in writing – with the two vices that are said to lie behind this charge. In taking the Court to the statute, I have already dealt in large part with what we say about the first way in which this argument is put. I can deal with the remainder of that argument in short compass.
My learned friend Mr Walker put – acknowledged, really the logical consequences of his argument; that any provision in this Act expressed in mandatory terms, would, if contravened, result in a substantial miscarriage of justice. Now that submission ‑ ‑ ‑
EDELMAN J: Always?
MR DOYLE: Always ‑ is untenable for multiple reasons. If I could just offer two examples in order to test the point. Assume that there was identification evidence given by a Crown witness in circumstances where its reliability were doubted. Defence counsel does not – as they should under this regime – request a warning about that identification evidence. It was known at common law as a Domican warning, now reflected in section 36 of this Act. Defence counsel just does not pick it up and does not ask the judge for it.
The judge, despite not going through the process prescribed by section 15 and 16 which would require the judge to raise this with the parties, just gives the direction, which favours the defence. That would be a breach of the mandatory requirements in section 15 and 16 to refrain from giving a direction unless the parties have requested it, or, if they have not, unless the judge raises it with them. Those requirements are mandatory:
the trial judge must not give the jury a direction that has not been requested –
says section 15, subject to the ability in section 16 to give it if they think:
there are substantial and compelling reasons for doing so –
But they must, under that section, inform counsel. Now, in that case, there could not be a substantial miscarriage of justice. This is a direction given that would favour the accused – defence counsel simply missed it. But a mandatory requirement of statute has been breached.
Perhaps a more helpful example would be the contravention of section 21. We specifically referred to this in writing. That section makes mandatory a direction on the use of evidence of incriminating conduct. There is one case we have cited – Saddik, from Victoria – where this requirement was breached recently. The Crown did rely on evidence of incriminating conduct in that case and the trial judge did not give a direction which complied with section 21. The court concluded that, having regard what the judge did say and the likely forensic decision of defence counsel not to request any further direction, that there was no substantial miscarriage on the basis that that section was not complied with.
There must be room, in my submission, for appellate courts to make judgments just like that, under this Act, and despite the challenge laid down by us in our written submissions, my learned friends have not contended that that decision was plainly wrong.
It is worth just restating and evaluating this argument that Parliament, in enacting these provisions, has not amended section 276 of the Criminal Procedure Act. Breach of this Act can constitute – as it does in this case – an error or irregularity for the purpose of section 276 of the Criminal Procedure Act. There is no special category of errors or irregularities just because they are statutory.
There will be occasions – and the decision of this Court in AK and Subramaniam represent two – where certain kinds of statutory provisions for the conduct of criminal trials are regarded as particularly important or essential – the giving of reasons in a judge‑alone trial where a judge replaces the jury as the finder of fact, as in AK and Fleming – or the criticality of telling a jury presiding over a special hearing about the nature of that hearing, and why it is special. One can understand why those were held to be essential features of the trial.
But those cases say nothing about this statute. They certainly do not stand for some broad proposition that every time the Parliament expresses itself in mandatory terms about how a criminal trial is to run, breach of those prescriptions or proscriptions will be a substantial miscarriage.
The only other points to summarise, briefly, which go to that first ground, concern the secondary materials. I do not think that I need to take the Court to them: no doubt the Court has had the chance to look at them. But I just make these observations: when one reads the Second Reading Speech for the original Jury Directions Bill and the later reports, which recount the history of this legislation; when one reads section 1, which sets out the purposes; section 5, which sets out the guiding principles – in each case, one sees that brevity, clarity and comprehensibility were key aims of all the reforms from start to finish.
Jury directions in Victoria were regarded as simply too long, simply too complex, and, according to empirical research, not understood. When one reads the underlying material about this tranche of reform – this amending Act from 2017 – concerning section 44J, the only thing that the Explanatory Memorandum, the Minister’s speech, and the Criminal Law Review Report have in common, is that they describe it as confusing. It is perfectly consistent with the program of reform represented by the Jury Directions Bills and Amending Acts, that confusing and unnecessary directions were abolished.
It should not be assumed – and my learned friend’s argument tends to assume – that it must reflect a view about unfairness. And, as I have endeavoured to demonstrate by contrasting section 44J with section 44H and section 42, that is not necessarily right. It was a sufficient reason, given the aims of this legislative program, to cut this direction if it was going to confuse a jury; if they did not need to hear it, or would not regard it as helpful. They are further reasons, in my submission, to reject the first way in which my learned friend put the case.
Subject to anything further I can assist with, those are the submissions for the respondent.
KIEFEL CJ: Yes, thank you, Mr Doyle. Mr Walker.
MR WALKER: May it please your Honours. Can I go first to the way in which we replied to the argument based upon a reading of Baini. It is, in our submission, significant that there is, if not exhaustively, nonetheless a common contrast proposed in this Court between a substantial miscarriage being a description attached after consideration has been given to whether a difference could have been made to the outcome of the trial – that is the first category – and the second category, where there is a quality of what has occurred – call it an error, or misdirection – that constitutes a substantial miscarriage of justice without that inquiry as to a hypothesis.
That second category includes what we have attached our first argument to, namely the quality of being a serious departure from the prescribed processes for trial. Accepting as we do that all of that is – that is every step in that way, in that direction – is a step of judgment, characterisation, of course, when one then sees what follows after that, paragraph 26 in Baini – explained further, for example, in paragraph 28, where there is a reference to the judgment that:
the evidence properly admissible at trial required the conclusion that the appellant was guilty –
the passage to which my learned friend took you. That word “required” echoes what comes in paragraph 29:
an appellate court will not be in a position to decide whether the appellant must have been convicted –
So, “required” and “must” – they are the inevitable proposition with which that category of substantial miscarriage of justice is concerned, but it is not the only one. That is why – as we have drawn to attention – in paragraph 33, the Court returned to that contrasting pair that was referred to in paragraph 26 and where we, in our first argument, submit that our case is to be found – in the second of those appears a serious departure from prescribed mode of trial.
In our second argument, however, the same passages in Baini include, of course, paragraph 31 to which attention has already been drawn and the position then, where the question is whether the conviction was inevitable – it was required by the admissible evidence or must have been convicted, to use the language of 28, 29, 30, et cetera – that is a position where success in the appeal comes if we can demonstrate that had there been no error – in this case, had the misdirection in breach of the statutory prohibition not occurred – the jury may have entertained a doubt as to his or her guilt.
EDELMAN J: In the language of the common law, that is demonstrating a miscarriage.
MR WALKER: Yes. In the language which has been used to label provisions of the common form appellate statute, it gives rise, of course, to the proviso which is the origin, obviously, of “substantial miscarriage”.
Now, our point is this: be it common law or the adaptation of the common law in the common form proviso, the question, relevant to the second way in which we put our argument, is whether it could possibly be said with a direction that told the jury what they should take into account when considering Mr Tambakakis’ evidence, in a case where the judge correctly directed the jury that Mr Awad’s case really depended on their view of Mr Tambakakis’ evidence and where the onus would lie on the Crown then, in our submission, it is quite impossible to look at what is before this Court and say there was no chance, no possibility of the jury on the basis of Mr Tambakakis’ evidence, entertaining the requisite doubt. When I say requisite, I mean the doubt that would inevitably produce acquittal in the case of Mr Awad.
That is why, for the reasons succinctly and appropriately put by Justice Priest in the court below, on the second way in which we put our argument – which is the way in which we succeeded in persuading his Honour in the Court of Appeal – this is a case where there has been a miscarriage and it cannot – the Crown cannot – make good the inevitability; that is, the notion that there has been no chance lost of an acquittal. It is for those reasons ‑ ‑ ‑
KIEFEL CJ: Is it relevant to that question that, essentially, what is involved here is an issue of credit?
MR WALKER: It is for our case. I want to draw back from too many generalisations but, if I can generalise this far, in any case where the jury has the issues correctly put to it as turning on the credit of a particular body of evidence – it may come from more than one witness, or the credit of a particular witness in a particular regard – then, in our submission, a misdirection as to how you approach questions of credit will (a) be a miscarriage and (b) unless there is something else that can be pointed to of its nature means – bearing in mind the purpose of directions and the effect therefore of misdirections – it will leave open a chance of the jury having not reached a verdict of guilty had they properly been directed or, more to the point, not been misdirected concerning how to approach credibility.
KIEFEL CJ: It is often said in relation to the proviso that questions of credit make it very difficult for a court to apply the proviso.
MR WALKER: Yes.
KIEFEL CJ: In Baini, the approach is to recognise that there are natural limitations if you are looking at the issue of inevitability. They are similar approaches, are they not?
MR WALKER: Yes, they are. I was going to say that approach which is very familiar under the proviso, where there comes a point where the appellate bench, with its duty under vice and a proper understanding of the proviso, nonetheless cannot decide on that issue of credibility; that is, to respect the different functions of the first instance jury and the appellate bench.
In our submission, the argument I am putting, which is drawn obviously from the principles that one sees illustrated in paragraph 31 of Baini, is cognate with that. So, this second way we put our argument, namely it is a substantial miscarriage because you have lost a chance – it cannot be said that conviction was inevitable, bearing in mind that the misdirection in question prohibited by statute was a misdirection that went to the heart of the particular issue in the forensic contest.
That is my next point of reply briefly. The misdirection, as we put it, found at page 32 of the book, is certainly not deprived of its qualities of a direction; that is, telling the jury what they should have regard to, what you should consider. Those are words of judicial direction from the person who has started the proceedings by telling the jury what position the judge has in relation to them. None of that is, as it were, deprived of its ordinary lexical import by what preceded it, recorded at page 14 of the core appeal book, and the mere fact that the same neutral word “observations” is used on pages 14 and 32 goes nowhere. They are used in very different contexts and one is entitled to point out that what we see there are apparently two species of observations: take it or leave it observations – page 14 – or observations which you should take into account – page 32. They are different.
Next, and compendiously, none of the other passages in the charge, in our submission, can be said to have either averted to, or necessarily with clarity, implicitly brought up for reconsideration by the jury as they listened to the charge the page 32 misdirection so as to expunge it from any possible influence in their considerations. It is quite impossible, looking at any of those passages, to reach that extreme possibility not even available, we submit, in theory.
GLEESON J: Mr Walker, just one question in relation to that. I think that Mr Doyle has submitted something to the effect that the prosecutor’s statement in closing address neutralised the effect of the direction. I take it from, what you have said, that we should read this as though, having been told by the judge that the jury ought to have regard to two factors, thenceforth, they consider that they ought to, in fact, do that unless they are explicitly told not to.
MR WALKER: Yes. The usual way of correcting something – I am about to come to section 7 – the usual way of correcting something is to identify the error and to say, do not do that. This, as my learned friend has fairly drawn to attention, this is a statute enacted with the laudable aim of reducing, if not dispelling confusion and misunderstanding.
GLEESON J: But here, for example – and I think you made the point earlier – you have got these two competing factors that the jury is told they must consider. Then the next thing, the very next thing they are told is, you should treat the evidence in exactly the same way as you would treat the evidence of any other witness. How is a jury going to hold those two things in their mind?
MR WALKER: With confusion. With confusion. The figure of authority – self‑announced, as judges have to do in a jury trial – has told them those two things, and as Justice Gleeson points out, one on the heels of the other. It could not possibly understand the jury to – as it were – say, I can forget what I have just been told in the last ten seconds because of this. That would be to suppose – if I may say so – a most irreverent view by the jurors of the judge, namely, I will only know whether he knows what he is talking about when I get to the end and see what is left occupying the field.
In our submission, that is a fantastic approach and these words on page 32, in the traditional way that the lay, and – as I have put it – misleading contrast of “innocent” and “guilty”; the notion of “toughing it out” – the colloquialism – it is a seductive thing which is – with respect – probably at least as likely to lodge in the decision‑making parts of the jurors’ brains as the rather more cut and dried – or desiccated, one might think – references to onus and standard.
EDELMAN J: If the primary judge had said, I made an error in my direction, you must disregard that, I think you concede that on this second argument, there would not be a substantial miscarriage of justice.
MR WALKER: Yes, and I am about to come to that, yes.
EDELMAN J: Why then, if the trial judge would otherwise have given such a direction but is asked not to by the defence counsel for reasons of forensic advantage to the accused, would there be a substantial miscarriage of justice?
MR WALKER: Can I try to answer that in the course of a slightly longer submission, which goes back to section 7. Before I get there, your Honours will recall one of our friend’s arguments was that it could not be, in their response to my first argument – it could not be a substantial miscarriage of justice if a direction required, in statutory imperative language, to be given in favour of an accused, was not given.
That, in our submission, is a most unpromising foundation for an investigation of what it means to constitute a substantial miscarriage of justice. Relevantly – and this might not last – these are provisions which are to be seen as providing appeal possibilities for convicted persons. It will not be a substantial miscarriage of justice resulting in appellate intervention, setting aside a conviction – obviously enough if, far from the error having been such as to produce possibly a different outcome from what would have been produced had there been no error – that the error could only have been in favour of the accused.
After all, an accused is seeking to overturn a conviction on the basis of a substantial miscarriage of justice against the interests of the accused – now the convicted person – there obviously is no call for appellate intervention in the case of a serious departure from prescribed modes of trial which has failed to do something against the accused’s interest.
Section 7, however, is part and parcel of the statute, and, in this part of the reply, I seek to work this in to our first argument.
GORDON J: Did you say the first argument, Mr Walker?
MR WALKER: Yes.
GORDON J: Thank you.
MR WALKER: So, section 44J prohibits the kind of direction that we say is found in contravention of it on page 32. Section 7 is in terms not directed to self‑correction by a judge. Paragraph (a) of subsection (1) concerns statements or suggestions by counsel or an unrepresented accused, and one notices that they are described as statements or suggestions that are prohibited by the Act. Just by way of example, you will see such prohibitions in section 33 re the evidence of children, or section 44H about the interest in outcome, to which attention has been drawn.
When you come to paragraph (b), it is clear this phrase “prohibited by this Act” must be travelling beyond such plain and explicit prohibitions of counsel or an unrepresented accused saying something to the jury, as is a possible reading of paragraph (a), because in paragraph (b), the duty to correct is:
a statement or suggestion . . . that is in a question from the jury.
And – unless I have missed something, your Honours – there is not a syllable in this Act which purports to prohibit the jury from doing anything. In particular, it does not purport to prohibit the jury from framing their questions in any particular way, and one can see how beneficial that would be for fallacy and error to be exposed rather than suppressed in jury questions. So, this notion of a statement or suggestion prohibited by this Act, contained in paragraph 7(1)(b) – because it is confined in that particular respect to statements or suggestions that are in a question from the jury – obviously picks up exactly the kind of thing that one sees in 44J.
That is, the judge is prohibited from saying something; the jury question conveys a supposition of premise or implication or assumption by the injury to the contrary of that, and the judge is, in our submission, required to correct it under section 7. In our submission, it is section 7 – and this is a self-contained Act – it is section 7 to which one should then turn attention, in inquiring: as to 44J, what happens if it has been corrected? I was asked that in‑chief, and I made the concession that it would mean not a substantial departure. But that is not because there was not a contravention. It was because there has been, in statutory terms, a correction. Parliament has said, and contemplated, that you can correct.
In this case, it was not corrected. So, this argument I am putting is a matter of interpreting, for the purposes of my first ground, how this statute requires what would otherwise be a serious departure from the prescribed mode of trial, to be addressed if it is not corrected. And, in our submission, the position is clear.
Indeed, you can frame it slightly differently. Would it be a serious departure from the prescribed mode of trial if a judge failed or refused to make a section 7 correction of a jury suggestion, contrary to section 44J? And in our submission, of course it would be. The Parliament has evinced the clearest of intentions that, if there is some such prohibited statement or suggestion then, in certain cases it can be, indeed, must be corrected. The “must” obviously contains within it the capacity for it to be done.
EDELMAN J: But you would almost always win on your second argument then. I mean, if the jury is raising that type of question, it is because it is in their minds and, if it is not corrected, then, by definition, the conviction was not inevitable.
MR WALKER: Your Honour, of course I do not seek to dissuade you from that. The first ground does have this effect, in our submission, that it highlights, particularly with a matter concerning the credibility of a critical witness on a critical point, it highlights how, in my second argument, there should have been a retrial in this case.
But I am persevering, I hope only for a little bit longer, in my first argument. In our submission, once one looks at section 7 with a duty to correct, it becomes really very difficult to say these matters, if they fail first time around, must be corrected second time around, these matters, if still contravened, do not represent a serious departure from processes of trial. And in a sense, the fact that we have this notion of correcting, that is, the legislative recognition of the human propensity to make an error, the possibility of it being fixed, the fact the possibility is there, section 7 is not meant to be a mockery if it is complied with and there will not be a substantial miscarriage, not because there was not a contravention of section 44J but because it has been corrected.
STEWARD J: But there is no absolute duty to correct, in the case of subsection (1), because of subsection (2).
MR WALKER: That is correct. It can never be a good reason for not doing so, however, that section 44J does not matter. That is where I wanted to just remind your Honours of this Court’s approach, to which we have drawn attention in writing in Subramaniam – to which my learned friend briefly referred – in the book of authorities it is part D volume 4, the particular passage is at 1144. It is 79 ALJR 116 at 125, right‑hand column, paragraph [41].
Your Honours are familiar with the position there, there was a very detailed regime for that particular kind of trial with respect to the mental health position. In paragraph 41, there are – if I may say so, with great respect – some temperate statements that might express less than complete enthusiasm for the legislative project, thus:
It is not immediately clear why the jury should be burdened with the sort of detail –
Et cetera, et cetera. But in the way in which I urge this point in‑chief, one sees at the end of that paragraph the pithy proposition:
Whatever the reasons –
That means: whatever the legislative reasons –
the language of s 21(4) is mandatory and must be given effect.
I call that in aid in answering Justice Steward’s question. There would have to be good reasons for the judge – acting judicially – and it could never be – I am so bold as to argue – it could never be a good reason that the judge disagrees with the legislative judgment that these things should not be done.
STEWARD J: Could a good reason include the reason actually given here? That is, it would be forensically disadvantageous to the defence to revisit the mistake?
MR WALKER: I think I am bound to say, yes, that must follow as a general proposition.
STEWARD J: All right.
MR WALKER: I do not say that is what happened here, though. One does not find that. Indeed, it would be perverse for, I think, defence counsel to say that is not a possibility. So, that is how we say section 33 assists in the way in which we put the argument on our first ground.
Could I take issue with the way in which our learned friend has put the role, we understand it, of section 65. I apologise if I have misheard and mis‑recalled it, but it is surely not possible for a judge to be enlisted under section 65 to expound as a legitimate argument that which the judge is prohibited from lending judicial imprimatur to under 44J, and there is no textual reason why such an oddity would be compelled, particularly as it reverses the proper relation between the superiority of judicial direction and the infinite correctability of advocates’ flourishes.
It is for those reasons, in our submission, that section 65 is by no means – and for the reasons I put in‑chief that I will not repeat – by no means to be seen as a form of provision that renders 44J avoidable in its evident intent by a Crown, being solicitors to put the prohibited suggestion to the jury. That would be, in our submission, wrong in a number of different ways, and it did not happen, of course in this case. If it please the Court.
KIEFEL CJ: Thank you, Mr Walker. Mr Dann.
MR DANN: Just one matter in reply, your Honours. The submissions by my learned friend, Mr Doyle, raising this spectre of this prohibited direction actually just being an observation; in our respectful submission, it is far too late in the day to raise that sort of suggestion in the sense that the majority in the Court of Appeal resolved this case – we say erroneously, but they resolved this case and the substantial miscarriage of justice question on the whole basis that this was a direction.
His Honour prefaced this prohibited direction – the learned trial judge – by indicating to the jury at the core appeal book page 15 – page 2565 of the transcript – that he would be giving directions about Mr Tambakakis’ evidence “in due course”. Not long thereafter he did embark on those directions. In our submission, the jury could only have understood this in that sense, and any suggestion that there would be some thought that this was merely a passing observation should be rejected by this Court, and this matter should proceed on the basis that what we are dealing with here is indisputably a direction of law and a prohibited direction of law. If the Court pleases.
KIEFEL CJ: Thank you, Mr Dann.
The Court reserves its decision in this matter and adjourns to tomorrow, at 9.45 am.
AT 3.16 PM THE MATTER WAS ADJOURNED
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