Baldwin v The Queen

[2010] HCATrans 298

[2010] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B50 of 2009

B e t w e e n -

JONATHAN THOMAS BALDWIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 NOVEMBER 2010, AT 11.41 AM

Copyright in the High Court of Australia

MR A. SMITH:   May it please the Court, I appear for the applicant.  (instructed by Kerwin Solicitors)

MR A.W. MOYNIHAN, SC:   May it please the Court, I appear with my learned friend, MS L.P.T.C. BRISICK, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes.

MR SMITH:   Your Honours, I wish to address two issues out of the outline which your Honours have that the applicant regards as most significant here.  They are the direction in relation to reasonable doubt and the direction in relation to any opinion that the trial judge may have held, both of which were addressed and discussed in the Court of Appeal.  As a fundamental starting point it is my submission that the applicant says that there should be strict adherence to principle and that to water down any principle in relation to the issue of a direction about reasonable doubt and/or in relation to any opinions that may have been held by the trial judge, in a sense is contrary to the public interest and the administration of criminal justice.

Your Honour, under the taking of evidence in these types of cases your Honours would be aware that the jury is actually denied the benefit of the actual presence of the witness.  There are subtleties in body language, eye movements and demeanour that cannot be replicated on video that are readily observed by the keen eye in a live presentation.  This, in my submission, tends to handicap the accused in his defence.  It is to be noted that as was said in the outline that by the operation of section 21A of the Evidence Act the complainant was regarded as a special witness.

In respect of reasonable doubt, your Honours, Darkan makes it quite clear at paragraph [69] that the stance of this Court is that the expression “beyond reasonable doubt” is the only expression – “it alone must be used, and nothing else”.  This was described by the Court in that paragraph as an extreme stand, being justified because it was being –

“used by ordinary people and is understood well enough . . . that departures from the formula “have never prospered” –

and use of other expressions –

invite the jury “to analyse their own mental processes” –

Here in the application book at page 9, lines 10 to 38 his Honour begins by saying at trial:

I can’t give you a definition of that phrase “beyond a reasonable doubt”.  I think it’s probably a well known phrase in the community.  People know that it’s the standard of proof in criminal trials.  It’s not the sort of phrase that you use commonly in everyday discourse, not the sort of thing you say around the dinner table –

It is my submission that it follows, contrary to Darkan, that his Honour then felt the need to explain it because it was not well understood in the context of individual mental processing, again contrary to authority, but also to make it appear as it if was a simple process.  It is my submission, and I do not think there would be a dispute about this, that this case was not an occasion for the going into that topic, given that there was no discussion in addresses.  It was not the subject of debate by counsel.

Thus, the invitation to consider their mental processes, in conjunction with the suggestion of it being simple or simply meaning, in my submission, was an error of principle contrary to Darkan and, of course, the cases of Green and other cases, that are mentioned there.  The Chief Justice at paragraphs ‑ ‑ ‑

KIEFEL J:   But his Honour does not really go into the question of what is reasonable doubt.  He assumes that they know what it is.  His Honour’s point is that they have to, and charges them correctly, that they have to consider the question about whether there is reasonable doubt in relation to every element of the charge.  That is the point his Honour is making there.

MR SMITH:   Yes, your Honour, but it was something that he need not have done, with respect, because if the phrase is well known and understood, as Darkan suggests that it is, why go on to say it simply means something and then ‑ ‑ ‑

KIEFEL J:   Probably because the barristers keep going on about it and the jury needs to be told that they are not going mad.

MR SMITH:   But in doing so, your Honour, that perhaps is the vice that can arise that all of these cases say, in Darkan, in particular, an extreme stand is adopted to just warn the judge not to go down that path.  Your Honour, his Honour the Chief Justice did discuss it at paragraphs [5] and [6] of his judgment and that is at the application book at page 50 to 51.  His Honour the Chief Justice described the trial judge’s explaining it as a “concept of uncomplicated proportion” applying to elements of the charge.  Just pausing for a moment, it was submitted below and his Honour did mention that in his judgment, that at that point in time there was no discussion about what elements were.

But leaving that aside, your Honour, it is my submission that again to talk about it as a concept invites mental examination as to what a concept is when it is plain language.  Your Honour, the matter was also discussed by Justice Lyons at paragraphs [47] and [48] to [49].

KIEFEL J:   But is your more fundamental point here that the nature of these types of offences such that they require particular directions to overcome what I think you have described in the submissions as some sort of innate prejudice against an accused?

MR SMITH:   Yes.

KIEFEL J:   If that is the essential point that you are making what kind of direction do you say is necessary in a case like this?

MR SMITH:   Generally, your Honour, I did set that out in the submissions and I will just turn to those if I may. 

HAYNE J:   At paragraph 19, page 71.

MR SMITH:   Thank you, your Honour.  Your Honour, this proposal comes as a result of a suggestion that because his Honour spoke of those things, such as people being affronted by the nature of the allegations and those things that really that was self‑evident.  So it is suggested that this type of direction is necessary in a case like this to put the jury properly, in my submission, on course insofar as its consideration of these very unpleasant facts are concerned because otherwise ‑ ‑ ‑

HAYNE J:   What does the proposed direction add to what the trial judge said at application book 8 between lines 10 and 40, which is, I think, a fairly standard direction about dispassionate, unprejudiced consideration of the evidence and only the evidence?

MR SMITH:   The problem with that, your Honour, is the first part of it because in the first part his Honour reminds them about something that surely they would know anyway and in one sense it tends to engrain the very point of prejudice.  With respect to his Honour, why say the first few lines, in fact, essentially down to, “The important thing for you as a jury” about line 28 should be, in my submission, the starting point as far as a case like this is concerned.

KIEFEL J:   What is missing from his Honour’s direction that appears in your suggested direction is such allegations can be easily made and are difficult to refute.  But there are problems for a judge giving a direction like that to the jury, are there not?  I mean it is gratuitous for a start and it is quite beside the point.

MR SMITH:   It, of course, was a standard direction, not too many years ago, that was given.  Having said that, of course, your Honour, the authorities seem to have moved away from giving a direction like that, it is acknowledged.

KIEFEL J:   Yes.

MR SMITH:   Your Honour, but if I may just turn though to the issue of the judge’s views because this is, in a sense, linked in with the prejudicial aspect of which I was speaking.  The judge told the jury that:

If you think I have a particular view about the evidence or I’ve formed an opinion about the evidence, my view and/or opinion only carries weight if you agree with it.

That appears at application book 6, lines 1 to 3.  The judge told the jury in an unqualified way, in my submission, soon after this was said that it was entitled to bring its commonsense to bear and “do what the Prosecutor invited you to do”.  I just direct your Honours’ attention to that at page 11.  This was a fairly strident point that the prosecutor made in his address, which his Honour repeated to the jury –

You’re entitled to do what the Prosecutor invited you to do, and that is form an impression of [the complainant] overall . . . and to ask yourself what impression do I have of this young man’s evidence?  Is he a calculating liar, I think was the expression or an expression like that that the Prosecutor used, or is he a young man who’s carried a terrible burden who was doing his best to tell you the truth.  You can use that sort of approach.  It’s a matter entirely for you.

Just prior to that statement at line 10 he had also said:

All that experience you can bring to bear when you come to consider the evidence, particularly [the complainant’s] evidence, tomorrow.

Your Honours, as I said it was a strong statement and in the context of describing the complainant as a vulnerable witness as I said in my outline it must be looked at in that light.  Such expressions, in my submission, are calculated to arouse sympathy and carry with them undeniable prejudicial overtones in the context of the charge. 

It is submitting that proffering a view that it was open to the jury to adopt the approach suggested by the Crown was like inviting the jury to consider the Crown’s approach to the evidence.  I make that distinction because it has been said by the Court of Appeal that he did not really comment on the evidence – he, the trial judge did not comment on the evidence.  But, your Honour, in commenting in that way he is inviting the jury to give an approach to the evidence in the manner in which the prosecution outlined, which was geared to a conviction.

Your Honour, the fact that the complainant was described as “the bulwark of the prosecution case” appears at application book 10 at lines 1 to 10.  So he was critical.  His Honour the trial judge invited the jury to take that approach if they thought it was okay in the context of him saying to the jury that his opinion might be one that could reinforce their opinion, if they felt that his opinion was shared by them. 

Of course, when one looks at both the decision of R v G the question to be asked is whether the passage of the trial judge could have led the jury to think that unless you were satisfied that the complainant was a liar they could convict, tantamount to inviting the jury to reverse the onus of proof, in other words asking the jury to pose itself the question why would the complainant lie?

It is true, your Honours, that the Chief Justice at paragraph [7], application book page 50 to 51 described the direction as “an unwise instruction” but his Honour said that it was followed by a direction that it was similar to the decision of Bourke.  But, with respect, your Honours, one turns to Bourke at page 425 in the second column. 

The judge in that case at trial did not suggest that his view could carry any weight, as opposed to the judge here.  Here, the judge said his view could, if the jury agreed with it, which, in my submission, could be another way of saying “If my view accords with your view it might be decisive on an issue”.  Further, the trial judge did not clearly, in my submission, eschew the consideration of his opinion as being relevant, as did the judge in Bourke.  For example, in Bourke his Honour said:

“It is not my function or obligation to consider the question of [the accused’s] guilt -.

as opposed to you and you alone, based on your findings, and if my view assists – and I am interpolating here – and if my view assists those findings, it only carries weight if you agree with it.  I refer your Honours also to the decision of Perera at page 220, lines 43 to 45 where the court said there:

The possible prejudicial effect of the use of such expressions cannot be overcome by the repeated statement that the facts are for the jury, and the jury alone.

Your Honours, it is my submission that to the critical extent that I have submitted here, the judge might have crossed the boundaries of impermissible comment in respect of his views.  Those are my submissions.

HAYNE J:   Thank you, Mr Smith.  We will not trouble you, Mr Moynihan.

We are not persuaded that it is arguable that there has been any miscarriage of justice in this matter.  Special leave to appeal is refused.

AT 11.59 AM THE MATTER WAS CONCLUDED