Baini v The Queen

[2013] HCATrans 276

[2013] HCATrans 276

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M83 of 2013

B e t w e e n -

MICHEL BAINI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 NOVEMBER 2013, AT 3.05 PM

Copyright in the High Court of Australia

MR T.R. ALEXANDER:   If it please the Court, your Honours, I appear with my learned friend, MR D. TERNOVSKI, for the applicant.  (instructed by Defteros Lawyers)

MR T. GYORFFY, SC:   If it please the Court, I appear with my learned friend, MS E.H. RUDDLE, for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

KIEFEL J:   Yes.

MR ALEXANDER:   Thank you, your Honours.  Your Honours, this application will not commence with Weiss, it will commence with the principle for which we contend, as is made hopefully plain from our written submissions.  What we submit in this case is that there is a principle that can be expressed in this way, that it is always open to a jury to have reasonable doubt about the truthfulness of a Crown witness whose evidence is challenged, and that that proposition is so, irrespective of whether the evidence is coherent and cogent and may read so on paper.  In fact we say that that is a necessary part of the function of the jury and that that is a proposition which has been established since, as identified in our application book, about 1874 in Dublin’s Case.

Accepting that as a proposition, your Honours, this Court in Baini (No1) said that the test in respect of the question of inevitability revolved around where the error that is made in respect of a case, that the evidence is wrongly admitted, that a substantial miscarriage of justice will necessarily follow if it was open to acquit in respect of the jury.  If you combine in this case the Dublin principle, that is, that the jury are always entitled to disbelieve a witness and acquit, combine that with the case here that the evidence, wrongly adduced in a case where conviction turns on the contested credibility of a single Crown witness, it is always open to acquit, therefore there is a miscarriage of justice.

BELL J:   That is a rather strikingly broad principle for which you contend, is it not?  It would mean that in any case in which there had been some legal error and in which the prosecution depended upon the evidence of a witness, the court would be duty bound, as it were, to find a substantial miscarriage of justice.  So in every sexual case, dependent on the evidence of a complainant, any legal error would necessitate an order for new trial at least.

MR ALEXANDER:   We say, your Honour, that the error that is made is related to the issue upon which the witness whose credibility is challenged must be accepted.  So the issue on which it is open to acquit in that case must be the same issue to which the error relates.  If I could perhaps express it this way:  where the element of the offence in this case was the menace, the only evidence that the menace occurred was given by the Crown witness whose evidence was challenged and whose credibility was essential to find that that element of the offence had been made out.  Consequently, the proposition is not so broad as to say wherever there is an error we can then immediately move to the question of open to convict – open to acquit, sorry, where there is acceptance of an alternative ‑ ‑ ‑

KIEFEL J:   But does it come down to this, that where the Crown case depends critically upon the evidence of one witness, if that witness is seriously challenged in some way then the court cannot determine on the proviso that the verdict was inevitable.  Is that what it comes down to?

MR ALEXANDER:   Yes, your Honour, with respect, that is what it comes ‑ ‑ ‑

KIEFEL J:   I think there might be some problems with that.

MR ALEXANDER:   Because the proposition relies upon accepting that where there is a case where three criteria are met:  one, the issue upon which the challenge is made relates to the error; two, the conviction in that instance turns on credibility; and, three, that credibility is challenged, in those limited circumstances the court – it must be that it would be open to the court – to the jury to acquit because of those three factors occurring in combination in a given case.

BELL J:   But I suppose at any trial one can say, well, it was open to the jury to acquit.  That is really not the issue with which the Court is concerned in determining whether or not, for the purposes of the Act, there has been a substantial miscarriage of justice.

MR ALEXANDER:   Well, there are perhaps cases when – in fact there are many cases where there are other aspects that the Court of Appeal could look at when determining whether or not it was open to acquit from the perspective of the jury.  There might be cases where one could look at other pieces of evidence, other witnesses.  The principle is confined to cases where it is dependent upon the single Crown witness whose evidence is required in order to satisfy the elements of the offence and that that credibility of that witness is challenged. 

So the breadth of the proposition is not so broad as to make it unworkable.  The proposition is simply that there is a certain class of case, as occurred in this instance where the Crown conceded that conviction rose or fell based on accepting the evidence of Mr Rifat, and if that were the case then it could not be, in our submission, that the Court of Appeal could find that it was not open to the jury to reject the evidence of Mr Rifat because our principle is that it is always open to the jury to reject the evidence of a Crown witness in these circumstances.

BELL J:   Well, if that principle is right the order that should have been made in the proceedings that were before the Court on the last occasion was an order for a new trial.  There was no point remitting the matter because you say there could have been only one conclusion, whereas the Court of Appeal, applying the test that was stated in Baini came to the conclusion that the compelling inferences from Mr Rifat’s evidence, taken with the other evidence in an analysis undertaken by the court in the discharge of its function, was consistent with the view that conviction was inevitable in the sense that a jury, properly directed, should, must be taken to have returned a verdict of guilt if they were to comply with the directions having regard to the evidence.  Now, it was the Court of Appeal’s task to engage in the review of the evidence and to make its own independent assessment, and that it did.

MR ALEXANDER:   Where we say the error lay, your Honour, was when the Court of Appeal engaged in the task according to what was said at application book 166, and this is from this Court’s decision in Baini, that the – unless it determines, and to cut to the chase, unless it determines that it was not open to the jury to entertain a doubt as to guilt that issue of the – the role that the question of the Court of Appeal needs to invoke when it considers this matter, through the perspective of the jury, and indeed, at 192 of the application book their Honours refer to the correct test and halfway through that paragraph on page 192 at paragraph 10 it says:

the jury acting reasonably and applying the correct onus and standard of proof –

In our submission, what that invokes is the principle that the jury, if they were acting reasonably and applying the correct onus and standard of proof, and indeed, were correctly directed by the court, and I think that is implicit in that statement, would necessarily take into account that they were entitled to reject the evidence of a witness, and when the Court of Appeal finds that they were bound to accept the evidence of Rifat in these limited circumstances of this type of case they found that the Court of Appeal was bound to accept the evidence of the witness by saying they were bound to convict.

In our submission, there is a certain type of case, and this is one, where the parameters of the case indicate that you could not arrive at that conclusion, and the error that the Court of Appeal made was to fail to take that direction into account, that it is always open to a jury to accept that a case has not been made out, notwithstanding cogent and coherent evidence on the written record.  Indeed, that is one, we say, of the natural limitations

of the written record in the task an appellate review court needs to undertake and recognise.

BELL J:   I come back to the proposition, the order made on the hearing in this Court of your client’s application on the last occasion on the argument that you now present should have been for either a substituted acquittal or a new trial.

MR ALEXANDER:   I cannot escape from the logic of that proposition.  That perhaps ought to have been done.  It might be that it was left open to determine whether or not this was a substantial departure in the court below and not arrive at the question of inevitability, therefore this issue would not have arisen.  It might be that the concession was made after in terms of the case hinging upon it, and I think it was in the submissions in the Court of Appeal on the second occasion that the concession was made that the case initially revolved around the credibility of Rifat, but as to your Honour’s point that ought this not to have been raised in the first date the proper answer is probably yes.

Your Honours, that is the essence of the submission.  If those contentions are not accepted the application must fail.  I can argue many reasons around that point, but if that is of no assistance to your Honours then I will not press the matter.

KIEFEL J:   Thank you.  We do not need to trouble you, Mr Gyorffy.

On the applicant’s trial on charges of blackmail some inadmissible evidence was put before the jury, following upon the non‑severance of a count relating to a co‑accused. The question as to the proper application of section 276 of the Criminal Procedure Act 2009 (Vic) has been the subject of a decision by this Court – Baini v The Queen (2012) 246 CLR 469. On remitter, the Court of Appeal concluded that a verdict of guilty was nonetheless inevitable. No error is identified in the reasoning of the Court of Appeal. An appeal would enjoy insufficient prospects of success to warrant special leave to appeal. Special leave is refused.

MR ALEXANDER:   May it please the Court.

KIEFEL J:   The Court adjourns to 10.15 am on Tuesday, 26 November in Canberra.

AT 3.18 PM THE MATTER WAS CONCLUDED