Awad v The Queen; Tambakakis v The Queen

[2022] HCATrans 115

[2022] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M74 of 2021

B e t w e e n -

DANNY AWAD

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M75 of 2021

B e t w e e n -

JOHN MICHAEL TAMBAKAKIS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 17 JUNE 2022, AT 2.30 PM

Copyright in the High Court of Australia

____________________

KEANE J:   In accordance with the Court’s protocol when sitting remotely I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR O.P. HOLDENSON, QC for the applicant in matter M74/2021.  (instructed by Milides Lawyers)

MR P.J. DOYLE, SC appears with MR C.J. TRAN for the respondent in matters M74/2021 and M75/2021.  (instructed by Director of Public Prosecutions (Cth))

MR P.J. SMALLWOOD appears for the applicant in matter M75/2021.  (instructed by Stephen Andrianakis and Associates)

KEANE J:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours are aware that the case at trial against my client for the relevant attempted possession tried the possession as a state of affairs not commencing until after he had got into the Kia van, and your Honours will have seen our summary at page 298 of the application book.

The matter therefore emerged at trial whereby a co‑accused, Mr Tambakakis, was the source of evidence which supported the position of our client that he never got into the Kia van at all for the period in question in the charge.  So, taking care not to reverse onuses against ourselves, it was a crucial matter as to the reception by the jury and consideration thereafter of the evidence of Mr Tambakakis as it affected the position of our client in relation to the Kia van.  That is, the case could not have

have succeeded against our client had there been reasonable doubt on account of the possibility that Mr Tambakakis’ evidence, which was to the effect of our client never got into the van, was correct.

One then goes to the position that obtained by legislative fiat with respect to the consideration by a jury of such evidence, that is, the evidence of an accused. Could I take your Honours, please, in the application book to 305 to section 44J of the Jury Directions Act 2015 (Vic), an Act which, as its very short title indicates, is intended to stipulate, control and regulate – prescribe – how juries are to be directed.

Your Honours will see that the provision uses language which has familiarly been regarded as mandatory.  Not just mandatory in the sense of the supposed dichotomy “mandatory” and its directory, but “mandatory” as a matter of ordinary English.  “Must” is the most natural way in which a matter about which there is not a choice of compliance is expressed.  Over the page, on sees in section 44K accompanying 44J is the so-called “Abolition of common law rules”.  When one puts 44J and 44K together with their incorporated notes all together, there can be no doubt that there is intended there, in the most overt fashion possible, a legislative description of the mode of lawful trial.  Now, in our submission, that means that an important special leave point is raised in this case which involves a clear contravention of the prohibition in 44J.  You will see we have quoted at the foot of page 299 of the application book the important part of the offending direction.

GLEESON J:   Mr Walker, does appeal ground 1 really add anything to ground 2?

MR WALKER:   Not really.  Ground 2 leads the charge because, as I have opened, it has to do with a statutory commandment.  Ground 1 is not intended to add some parallel source of compulsion, your Honour.  I hope that answers the question.  There is really one ground that the direction, partly quoted in ground 1, was in breach of 44J and its nature is such as to not only explain the perceived mischief manifest in the statute, but also to put paid to the idea that this is in some respect a venial matter; something that is too unimportant for a court to be concerned about in relation to substantial miscarriage.

KEANE J:   So, Mr Walker, if a grant of special leave were confined to ground 2, that would not disturb you, concern you?

MR WALKER:   No, your Honour. The substantial miscarriage, of course, as required by section 276 of the Criminal Procedure Act 2009 (Vic) is a familiar and common concept, the importance of which is self‑evident in criminal appellate jurisprudence. Now, your Honours will be familiar with the significance of stipulated modes of conducting a criminal trial that, with respect to the notion, open‑ended as it must be, of substantial miscarriage of justice. We have drawn to attention and would urge that the Court of Appeal below has proceeded erroneously given this law, to paragraph 26 in Baini 246 CLR 469 at 479. True it is that there is:

No single universally applicable description . . . for what is a “substantial miscarriage of justice” –

But then one sees a catalogue of what might be called paradigm cases, the third of which, in the reasons of the Court there, was where there has:

been a serious departure from the prescribed processes for trial.

Prescribed processes of trial, it need hardly be said, include, if not limited to, the processes which have been prescribed by an Act of Parliament.  The judgment to be made concerning the characterisation of a state of affairs as indicating a substantial miscarriage of justice is therefore one which, in some cases, will involve determining whether there has been a serious departure from the prescribed processes for a trial.  That is an important subset of the possible cases for substantial miscarriage given what the Court went on to say in paragraph 33, at page 481 of Baini, where it is pointed out that where there have been serious departures from prescribed processes of trial it really is not to the point to apply what might be called proviso reasoning.  Of course, for the proviso itself, that is a very familiar approach.

It is for those reasons that we submit that this is a case where this Court should intervene in order to vindicate the paramountcy of legislative prescription of modes of trial – it need hardly be said that is modes of lawful trial – and the incapacity of a Court of Criminal Appeal to find that there has not been a substantial miscarriage because the outcome might not, or would not, have been different.  That is what this Court in Baini has pointed out does not apply to serious departures from prescribed processes.

Now, it is not as if what we are putting is novel.  Not only is it supported by the approach taken in Baini, but it occurs to us – we have not given it to your Honours – but mandatory directions are, of course, a bit like prohibited directions, not a new area of legislative endeavour.  It may be that legislative drafters and those who preside at criminal trials do not always think the same way about the merit of what emerges from Parliament, but that is a matter for Parliament and the people, not a matter for the judges to address by applying something in the nature of an illicit proviso reasoning.

Thus, in Subramaniam, for example, the comment was made before proceeding to apply the mandatory wording in a mandatory sense that it was not immediately clear why the statutes had provided for such detailed matters of direction.  That is, with respect, the extent to which there might be a judicial raised eyebrow at prescribed processes.

Now, it is known as to the subject matter of 44J that those are matters of professional and jurisprudential debate over generations as to what should or should not be directed concerning the jury’s approach to the evidence of an accused person.  But there has been the decision taken by the paramount authority, Parliament, that this must not be directed, and it was.  It could hardly be said there was not a serious departure.  The fact that it was not repeated or that it may not have been consistent with other parts of the summing‑up does nothing to improve the position.  If anything, it makes the water muddier.

Now, it is for those reasons, in our submission, that when one thinks about the position contemplated in AK, which, of course, was quite a different stipulation – a stipulation there for reasons to be given – the basal principle in considering a substantial miscarriage is that to which we have drawn attention and which, we submit, ought to be regarded as applying with respect to jury directions as well.  I will remind your Honours of the passage in AK v Western Australia 232 CLR 438 at 456 paragraph 57 and following over to 59.

What Justices Gummow and Hayne were, with respect, at paints to point out there is that there had been, by the complete failure to meet that mandatory requirements of the statutory provisions for the delivery of reasons and findings, there had been a failure to do what the statute required, meaning that the appellant had not been tried in accordance with the requirements of that provision.  That, with respect, is palpably true of this case.  Our client was not tried in accordance with the requirements of section 44K.

Again, the substantial miscarriage cannot be avoided as the characterisation in such a case for the reasons pointed out by their Honours in paragraph 59, namely that those are questions of process which render beside the point – my paraphrase – consideration of what might have happened had there not been that error.  It is for those reasons, in our submission, that the obvious appellate remedy in such cases is a retrial.

On the facts of this case, it can hardly be said that the jury’s view of the credibility of Mr Tambakakis with respect to that part of his evidence that removed our client from ever entering the van was very important for a trial of the allegation against our client.  One certainly cannot say that there was anything in the case that would have obliged the jury to reject that part of Mr Tambakakis’ evidence.  One is left, with respect, because of the possible effect of a direction, all of which we are required, however

doubtfully, to accept are followed by jurors – it can hardly be said that the effect of that direction can be put to one side as not leaving open the possibility of an acquittal that would have followed from a failure to be satisfied beyond reasonable doubt that our client got into the van, being the critical first step in the phase of attempted possession.

That is why, with respect, in accordance with conventional reasoning and the authorities to which I have referred, this was a case of a substantial miscarriage of justice and that it ought to be understood as flowing simply from there having been a breach of the statute which prescribes the mode of trial and for good measure, though we submit in principle unnecessary, the added observation that it could not possibly be the case that the Court of Appeal could be satisfied beyond reasonable doubt that Mr Tambakakis’ evidence in that regard could not possibly be correct.  That was a matter for the jury, and the jury was, ex hypothesi, affected by the illegal direction.

It is for all those reasons, in our submission, that this is a case appropriate in order that the Court vindicate the approach to statutory prescribed modes of trial, serious departure from which will constitute a substantial miscarriage of justice.  If it please the Court.

KEANE J:   Mr Doyle, are you content to address us after Mr Smallwood?

MR DOYLE:   Yes, your Honour.

KEANE J:   Mr Smallwood.

MR SMALLWOOD:   As the Court pleases.  Your Honours, I adopt the submissions that have been advanced by my learned friend, Mr Walker, and do not seek to articulate any additional submissions.

KEANE J:   Thanks, Mr Smallwood.  Yes, Mr Doyle.

MR DOYLE:   To address first, your Honours, my learned friend’s first argument that this error was fundamental, it – unless as it is put in writing, if not as it was put by Mr Walker today – appears to invoke the category of case described in Wilde as a case involving radical errors or miscarriages so severe that there was hardly a trial at all.

My learned friend seeks to establish that it was that kind of error almost as a matter of statutory construction alone, asserting effectively that Parliament has deemed a contravention of section 44J of the Jury Directions Act to be a miscarriage of that kind. Parliament, in my submission, has done no such thing. The legislature enacting section 44J of the Jury Directions Act has not addressed the topic of what the consequence would be of a breach of that provision and whether or not it would constitute a substantial miscarriage of justice.

That is a question that is left to a court applying section 276(1)(b) of the Criminal Procedure Act. That section requires consideration of whether a substantial miscarriage of justice resulted from an error or irregularity in the trial. Plainly, the contravention of section 44J in this case was an error or irregularity, but concluding that it would be automatically a miscarriage of justice would be a mistake and it would involve failing to carry out the statutory task described by the Criminal Procedure Act.

Justices McLeish and Niall in the majority in the court below were correct to recognise this, and if I could take the Court to the passage in which their Honours did so, it is at application book page 269, paragraph 150 of their Honours’ judgment.  It seems not to be in issue that their Honours were correct in recognising that the decision in Baini does not require in every case where there is an error or irregularity an appellate court to examine the record for itself to determine whether guilt was inevitable, but there will be a category of case in which the nature and impact of an error on the trial which was held needs to be assessed.  Their Honours noted in paragraph 150 that:

the causal connection between the error and the result arrived at by the jury, which is the focus of s 276(1)(b).

And more particularly:

In the case of a direction, there will have been no substantial miscarriage of justice if, having regard to the direction in the context of the charge as a whole, the erroneous direction was innocuous, had been corrected, or could have had no bearing on the outcome of the trial.

The Court will see that among the authorities for that proposition cited by their Honours were decisions of this Court in Kalbasi and in Jones v The Queen.  It is also apparent, in my submission, on the authority relied on by my learned friend, AK, that an assessment of the nature of the error was important to the approach of the majority in that case.  That case concerned the breach of a different kind of statutory requirement, that is, a requirement in a judge alone trial to specify the principles of law and findings of fact which supported the judge’s verdict.

My learned friend took the Court to paragraph 67 and onwards of the decision of Justices Gummow and Hayne.  If I could invite the Court’s attention to paragraph 55 of that decision, it is page 456 of CLR 232.  This was, of course, a West Australian case dealing with the common form criminal appeal provision where their Honours said:

In every case it will be necessary to consider the application of the proviso –

And their Honours go on in that paragraph to consider what they call the “two features of the error identified”.  So again, one could use the kind of emphatic language my learned friends do in describing this as a parliamentary rule that establishes the direction is wholly impermissible, proscribed process for a criminal trial, varying phrases, but none of them mean that it is unnecessary in any given case to examine the nature of the error and its consequences for the trial that occurred.

KEANE J:   Well, there may be cases where the error is fundamental in the Wilde sense, and you would say here that, given the direction in these terms has been given time out of mind in Victoria until the legislature stepped in, it cannot be said to be fundamental in that Wilde sense.  But the circumstance that the Parliament stepped in and said, do not do it, stop doing it, does rather suggest, at the very least that Parliament’s concern was that juries were affected in the performance of what is essentially, constitutionally, as it has been said, their task:  the task of assessing the credibility of the witnesses; so that one might almost say that Parliament has taken the view that this is an aspect of the conduct of the trial where the judiciary should leave the jurors alone because jurors may be influenced by directions like this.

MR DOYLE:   It is, in my submission, your Honour, a careful construction of the statute results in the conclusion that Parliament cannot have regarded the contents of the direction prohibited by 44J as such a fundamental error.  I will take the Court to the provisions now, but in short, the reason is because Parliament expressly contemplated that the parties could, in making submissions to the jury about how the evidence of the accused was to be treated, could use precisely that language.  What is more, the trial judge would, quite permissibly, be allowed to, in summarising the parties’ cases, remind the jury of those arguments and recommend they be considered, unlike the position involving other kinds of directions which are outright prohibited and where the statute requires the judge, if the parties make statements or suggestions contrary to those provisions, to correct those statements or suggestions.

We have reproduced some of the relevant provisions in our annexure A at application book 318 onwards. Could I first invite the Court to look at page 319 and the reproduction there of section 42 of the Jury Directions Act which prohibits statements and suggestions about an accused not giving evidence or calling witnesses.

The Court will see there an absolute prohibition on statements to the effect that the jury could conclude an accused is guilty by reason of those failures, or even an absolute prohibition on an invitation to Weissensteiner‑style reasoning in section 42B.

Now, a statutory note at the foot of that provision notes the operation of section 7 of the Act, which regrettably we have not reproduced for the Court, but what it says is that if a statement or suggestion contrary to that provision is given, or is made, the trial judge must correct it and only need not correct it if there is good reason for doing so.

Just before I go to 44J, which appears next, if I could also note over the page, at page 320 of the application book, section 44H.  The Court will be familiar with these kinds of statements or suggestions which are here prohibited because they reflect the erroneous direction given in Robinson’s Case that the accused has an interest in the outcome of the trial and their evidence is to be regarded as less credible or more worthy of scrutiny as a result.  That statement or suggestion is absolutely prohibited, and no party may make it, and, again, it will need to be corrected by the trial judge if it is made.

Section 44J is in a different category.  So, Parliament has specifically considered the content of the old comment routinely made reproduced in section 44J and decided that although the trial judge must not direct the jury in accordance with it, the parties may still, in the course of their argument, reproduce its content, and as the statutory note says:

This section prohibits the trial judge from giving directions to the jury about –

Those matters, but:

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 –

Section 65 obliges the judge – again the mandatory language of “must”, I will come back to the significance or insignificance of that language in a moment – section 65 says:

the trial judge –

(b)must refer the jury to the way in which the prosecution and the accused have put their cases –

So it would have been perfectly open to me at trial to say to the jury, Mr Tambakakis, aware of the overwhelming Crown case against him, decided to take a punt by getting in the witness box and seeing if he could survive cross‑examination, and you saw the results of that when his evidence capitulated under cross‑examination, but given the evidence he was facing he had no choice.  There will be nothing wrong with an address that said that and nothing wrong with the trial judge recommending the jury consider that argument, and that is the product of applying the terms of this statute.

KEANE J:   But is not the point that 44J, by not having a reference – by not being included in the possibility of correction by the judge under section 7 and by distinguishing the judge’s position from the position of counsel and then the judge’s obligation to remind the parties of the arguments of counsel, is not the difference that 44J is plainly concerned to ensure that the judge does not, with the authority of his office, say these things about the evidence of the accused; that it is about the authority of a judicial office behind the propositions, as opposed to arguments by the parties, and that that is because Parliament is concerned to keep the judge and the judge’s authority and the effect that that might have on the jury as the tribunal of fact, out of this area.

MR DOYLE:   Well, in my submission, your Honour, it would not be safe to infer that, and there is no sound basis to do so either in the text of the statute or the secondary material.  Parliament had multiple motivations for getting rid of the number of directions which were abolished in the Jury Directions Act and in many cases it was a case of trimming directions which were regarded as simply unnecessary or unhelpful, and there is no indication in the secondary material accompanying this reform that Parliament saw this direction as particularly dangerous or unfair.

One of the only specific things said about it was that it was inaccurate because it referred to the accused as the witness under most stress in the proceeding when on analysis they actually may not be, given the potential position of the complainant.  Given the long history in Victoria of this direction being given and of courts of appeal noticing it and approving of it, if Parliament thought that it was fundamentally unfair for it to be given at all, one might have expected some indication of that in the secondary materials.

In many cases, the direction does not necessarily need to be given at all.  It may be, as Parliament recognised, that a good part of it is simply inaccurate, where there was a complainant in a sex case giving evidence, for example.  It may also be that the parties do not necessarily put arguments to the jury in the terms of section 44J and therefore they need not hear anything about it at all from the trial judge.

GLEESON J:   Mr Doyle, is not the direction a distraction because it suggests to the jury that they should be contemplating why someone gives evidence; that is, their motivation for giving evidence, rather than simply what evidence what evidence was given?

MR DOYLE:   Yes, the direction may or may not be helpful, your Honour.  I accept that, and it is important that the jury do not treat the two possibilities that the direction presents them with as giving them an ultimate choice that they have to resolve in their verdict.  But, I submit, that with the directions which surround it and especially when they are given so repeatedly and emphatically as they were in this case, the jury will not treat their task as a choice.

One thing the direction does is just confront reality.  Justice Priest described the direction as fallacious.  It does not accurately capture all of the law on how a jury should treat evidence of the accused, of course, but it is factually correct to say that when the accused gives evidence, they are the two possibilities.  And it will often reflect, more or less, the position of the opposing parties in their arguments about how the jury should treat the evidence.  The jury, left to their own devices, will be aware of these two possibilities, in my submission.  There cannot really be any question about that.  But so long as it is made sufficiently clear that it is not their task to pick one or the other, as it was in this case, then the highest the danger could be put, in my submission, is, as your Honour just put it, a potential distraction.

Now, I do not know that I have got time to go through the charge in detail with your Honours.  You would be aware of Justices Priest and Niall in the court below undertaking that task and noticing throughout both the before, during and after the impugned direction was given, the emphasis that his Honour put on the burden and standard of proof and how that burden or standard was to be applied given that the accused had elected to give evidence.  The jury were specifically told immediately after this direction that Mr Tambakakis was to be treated in the same way as any other witness, which immediately neutralised the kind of risk my learned friends raise of the jury treating this direction as an invitation to unfairly discount this evidence.

It was particularly important that the jury were directed repeatedly and emphatically about what to do if they rejected or did not accept Mr Tambakakis’ evidence.  That direction was to simply put it to one side, not conclude as a result that the was guilty, but look at the evidence the Crown had presented to see if it had discharged its onus beyond reasonable

doubt.  Now, in my submission, there was really no prospect of the jury at then end of all of those directions failing to appreciate that that was their tasks when the only thing which could have distracted them from it was a single sentence in this entire charge.

That gives rise to the final point I would like to make by reference to the special leave criteria.  This case concerns a single sentence mistakenly read out from an outdated charge book.  That part of the direction has been abolished by statute.  It is not given in other jurisdictions and as a result I would submit that the point my learned friend seeks to agitate has not broader significance at all; nor, I would submit, is there any general point of principle to be considered about the circumstances in which a breach of a statutory provision governing a criminal trial will result in a substantial miscarriage.  The answer must always be it depends.  It depends on the nature and consequences of the error in the trial that was had, and given the number of possible miscarriages, the kinds of legislative provision which might have been breached, it would be not only unwise but it would be impossible for the court to be prescriptive about what the consequence of a particular error will necessarily be.

Finally, we submit that it is not in the interests of justice for special leave to be granted, given the prospect that this Court, reviewing the full record of the trial, will regard the convictions as inevitable.  Even on the limited record available to the Court, we would submit that that appears highly likely, as the sentencing judge said at application book 195:

the prosecution case against both of you was a strong one and the jury would have had little difficulty rejecting –

Tambakakis’ evidence.  He described it as:

replete with implausibilities.

Now, if one bears in mind the approach this Court recently took in Hofer where there had been an error which unfairly detracted from the credit of ‑ ‑ ‑

KEANE J:   Mr Doyle, did you hear the second buzzer?

MR DOYLE:   No, apologies, I did not hear anything at all.

KEANE J:   Your time is up.  Yes, Mr Walker, anything in reply?

MR WALKER:   Briefly, your Honours.  Your Honours, standard admonitions concerning the burden and standard of proof in the direction as some context for the offending passage is absolutely no answer to a breach of section 44J.  It is pure speculation and in fact implausible that the jury would, as it were, parse and analyse so as to ignore the offending passage.  In any event, burden and standard of proof simply do not address the question that 44J addresses.

Section 44J may well be addressed to matters that might have been regarded by way of former practice as being a distraction, that is, conducing to the jury being led astray.  That, of course, is not a good thing, and that is what 44J is, on its face – I stress, on its face, the enacted text – plainly directed to.  In our submission, there cannot be, as it were, a curate’s egg approach taken to a charge where there is a breach of a statutory requirement in the nature of a prohibited comment.

Of course, we call in aid the proposition that it is now clear – and the notes to section 44K make this crystal clear – it is now clear that former practice, including that which had been held repeatedly not to detract from the fairness of a trial was now no longer to be permitted in a lawful trial.  Now, there is a tautology there, but it is for the sake of emphasis.  One cannot have a trial conducted lawfully if it is in breach of a statutory norm.

That leads then, I suppose, to what one might call a Blue Sky question.  There can be little doubt about the mandatory nature of the prohibition in question, and there is no question of validity or voidness of the order, as Justices Gummow and Hayne pointed out, of course.  The question is whether there has been a substantial miscarriage, and where there has been a departure from what is the legislated mode of trial, there has been a trial not held lawfully.

One would have thought that provisions directed to how the jury is assisted, or more accurately directed, in its consideration of the evidence, including critical evidence – one would have thought that that was closer, if one had to use the languages of Wilde, to the fundamental tenets radically understood of a fair trial than the requirements which AK and Baini were talking about concerning the delivery of reason.  In our submission, it is for those reasons that this is a case which cannot possibly be answered by what I will call proviso reasoning.

Naturally, section 65 says nothing about the authority of the judge to a direction which, of course, itself is subject to a direction at the outset concerning the jury’s requirement to comply with it.  The notion, finally, that Parliament should not be understood by reference to extrinsic materials as having seen what was prohibited by 44J as – to quote my friend ‑ dangerous or unfair – that, in our submission, crosses the line, plainly, between the raised judicial eyebrow to which I referred in‑chief and the incorrect and wrong canvassing of the wisdom of a statute by judges, it is not the judge’s function.  May it please the Court.

KEANE J:   Thanks, Mr Walker.  The Court will adjourn for a moment to consider the course it will take in these matters.  Adjourn the Court please.

AT 3.14 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.16 PM:

KEANE J:   There will be a grant of special leave in each of these matters, limited to ground 2 in each case.  Mr Walker, how long are the matters likely to take to hear?

MR WALKER:   Within one day, your Honour.

KEANE J:   That is for both of them?

MR WALKER:   Yes.

KEANE J:   Do you agree, Mr Smallwood?

MR SMALLWOOD:   I do, your Honour.

KEANE J:   Mr Doyle?

MR DOYLE:   Yes, your Honour.  Given the foreshadowed notice of contention, best to allow a day.

KEANE J:   A day, very well.  Very well then, there will be a grant of special leave in each matter limited, as I said, to ground 2 in each case.  The parties should follow the directions of the Senior Registrar to bring the matters to a hearing.  Adjourn the Court, please.

AT 3.17 PM THE MATTERS WERE CONCLUDED