Bellamy v The Queen

[1990] HCATrans 233

_._

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S6 of 1990

B e t w e e n -

PAMELA BEVERLY ANNE BELLAMY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 OCTOBER 1990, AT 2.20 PM

Copyright in the High Court of Australia

Bellamy 1 10/10/90

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friend, MR R.A. BONNICI, for the

applicant. (instructed by Bolzan & Dimitri)

MR B.M. JAMES, QC:  May it please the Court, I appear with

my learned friend, MR W.G. ROSER, for the

respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

MR BENNETT:  I hand up an outline of submissions,

Your Honour.

MASON CJ:  The first point was not heralded in the affidavit

in support of the application, was it?

MR BENNETT:  No, Your Honour.

MASON CJ: That is an increasing feature of these

applications for special leave in criminal cases

that the papers do not disclose, with clarity, what are the points relied upon as special leave points.

MR BENNETT: Yes, I apologize for that, Your Honour.

MASON CJ:	I think counsel ought to appreciate that the members of the Court spend a good deal of time looking at the issues as described by the affidavit
in support of the special leave application and if a point is not identified, as it fails to be in
this case, it means that the Court cannot give
attention in advance to the nature of the point
that is going to be argued.

MR BENNETT:  Yes. I appreciate that, Your Honour, and I

will pass that on and I apologize that that was not

done properly in this case.

MASON CJ: Yes, very well.

MR BENNETT:  Your Honours, the first point is a very short

one. If Your Honours go to page 174, Your Honours

will see at line 29, starting at the end of the

line, His Honour says this:

It was mentioned by Mr Leary that the accused

comes before you with a presumption of

innocence. That is not quite the presumption;

the presumption is that she comes before you

not guilty. I repeat that you are not called

upon to decide innocence.

The words "not guilty" were defined a few lines

earlier and defined correctly at line 24 where

His Honour said:

A verdict of not guilty may mean two things:

either that you are satisfied as to the

Bellamy 2 10/10/90

accused's innocence or alternatively that you
are not satisfied beyond reasonable doubt of

the accused's guilt.

Putting those two together, what His Honour has

directed the jury is that there is no presumption

of innocence. There is a presumption that either

the accused is innocent or that you would not be

satisfied beyond reasonable doubt of the accused's

guilt.

TOOHEY J: There is a sentence in between that really needs

to be taken into account, Mr Bennett.

MR BENNETT: Yes, there is Your Honour. That is that:

you are not called upon to determine

innocence, only to decide whether the Crown

has proved the guilt of the accused beyond

reasonable doubt.

That sentence is impeccable, but it does not cure

the defect. There is no doubt that the jury were

correctly told and correctly told a number of times

that they had to determine guilt beyond reasonable

doubt and that if they were not satisfied beyond

reasonable doubt they should find the accused not

guilty. The problem is that His Honour chose to

mention the presumption of innocence and in

mentioning that misstated it, because instead of

saying as the authorities, I will be submitting to

Your Honour show, that there is a presumption of

innocence above which the Crown has to ride,

His Honour started from a presumption which, on one

of two views, is neutral.

DAWSON J: There is another way of looking at it but he did

not say he wanted to discount the presumption of

innocence because it might suggest to the jury that

what they decided was innocence or guilt and he

would want to say that is not a question. All you

have to determine is whether the Crown has proved

its case or not beyond reasonable doubt and in that

sense it is favourable to the accused - - -

MR BENNETT: Well, Your Honour, that may have been

His Honour's intention, but it is not the way it

comes out.

DAWSON J: Well, I am not sure.

MR BENNETT:  Because what comes out is that the accused,

instead of starting with the benefit of a

presumption of innocence, starts with some lesser

presumption and therefore, one might think, the

Crown has a shorter distance to rise to get to a

conviction than if the correct direction had been

Bellamy 10/10/90

given. It is interesting that if one goes a few

lines earlier still, at line 13, His Honour says:

I wish to give to you now what is possibly the

most important direction of law that is given

in any criminal trial. It is a direction that

must remain in the forefront of your

deliberations.

And then that introduces the passage. It is true

that he goes on to say:

That direction is that the burden lies on the
Crown to prove the guilt of the accused and to

prove that guilt beyond reasonable doubt.

But the passage is in the p~Ssage following on from

His Honour describing this as the most important

direction in the trial and we submit it is one

which is wrong and likely to lead a jury into

error. I have listed some cases on the first page

of my submissions - - -

TOOHEY J: Can I just ask you this, Mr Bennett. Is the

complaint that His Honour should not have mentioned

the question of innocence at all or that he should

have mentioned it and erred in the way in which he

did mention it? For instance, if he had said
nothing about any presumption of innocence, but
merely spoken of the obligation on the Crown to

prove the case beyond reasonable doubt, would there

be any complaint?

MR BENNETT:  No, Your Honour, there could not be.

TOOHEY J: So, where does the complaint lie? It is, what,

in the introduction of the reference to innocence

without an adequate explanation of what that means.

MR BENNETT: Well, it lies in this way, Your Honour: the

counsel for the accused put the matter correctly,

in my submission. He said, according to

His Honour, "It was mentioned by Mr Leary that the

accused comes before you with a presumption of

innocence". Now, counsel for the accused was

entitled to put that; that was correct. He was entitled to put to the jury the evidence had to

move them from a presumption of innocence to a

position of guilt beyond reasonable doubt.

His Honour then says that is wrong; that is not

quite the presumption. The presumption is, she

comes before you not guilty, as defined by

His Honour a few lines earlier.

In other words, something which the accused's counsel was entitled to and did correctly put to

Bellamy 4 10/10/90

the jury was taken away by His Honour, giving the

jury a different and erroneous standard.

DAWSON J: Well, it was taken away but then they were given

the correct standard without - - -

MR BENNETT: Well, they were never given the correct - - -

DAWSON J: And, it really would be a problem if it were

thought that the question was innocence or not and

that was the contest. I mean, that would be very

much against your client.

MR BENNETT: Well, it would be, Your Honour.

DAWSON J: So, all the judge did was to put to them, really,

to put that on one side and to put to them the

correct question which they had to decide, which

was whether the Crown had proved its case beyond

reasonable doubt.

MR BENNETT:  Your Honour, but in putting it to one side, he

misstated the presumption and it is a basic

presumption, we would submit, and one which one is

entitled to have stated correctly.

DAWSON J: Well, you can no doubt take us to the cases which

speak of it. I seem to recall that they say it is

a very compendious way of talking about a number of

things.

MR BENNETT: Well, Your Honour, the cases are not very much

help. There are seven of them there but it will

not take me very long to tell Your Honours what

they say. The last four, Burns, Driscoll, Sutton

and Harriman, are all single sentence references in

the course of discussing other matters to the

presumption of innocence.

The first of those is a statement by three

Chief Justices as they were or became,

Mr Justice Barwick, Mr Justice Gibbs and

Your Honour Mr Justice Mason and in the joint

judgment of those three Justices, there is a

reference to the presumption of innocence.
Driscoll is a statement by Sir Garfield Barwick;

Sutton and Harriman are both statements by

Justice Brennan and, in each case, it is a passing

reference picked up only with the aid of info 1,

which refers to the presumption of innocence.

DAWSON J: And, it is not really a term of art. It is a way

of talking about the golden thread, is it not,

really? That the Crown has to - - -

.MR BENNETT:	It is a way of describing that.
Bellamy	10/10/90
DAWSON J: That is all it is.
MR BENNETT: But, it is a little more than that,

Your Honour. If that was all it was, His Honour would be correct. It is a little more than that.

It is a presumption that every person comes before

a court with, that he is innocent.

DAWSON J:  I have never found any authority to that effect,

have you?

MR BENNETT:	Your Honour, the nearest one gets to it is the statement of Mr Justice Cussen in Estate of L which
is approved in later High Court cases. It is the
first of the cases on the list.  It is Estate of L,
(1919) VLR 19 at 36. This was a legitimacy case
but none the worse for that. At about two-thirds of the way down the page, against the words "is
satisfied" in the left-hand margin, His Honour said
this:

The expression "beyond reasonable doubt"
recalls the ordinary direction in criminal

cases that it is necessary that the jury

should be satisfied of guilt beyond reasonable

doubt before they disregard the primary

presumption of innocence.

Now, that passage has been picked up twice in

this Court. The first is in Briginshaw v

Briginshawwhere His Honour Mr Justice Dixon, as he

then was, cited it with approval and the other is

in Watts v Watts where the two passages, that in

Briginshaw incorporating that in Estate of L was

cited with approval by Mr Justice Kitto and

Mr Justice Taylor. They, of course, were not criminal cases but in each case there was a

citation of this passage. The suggestion is that

the ordinary direction should be that you must find

him guilty beyond reasonable doubt before you

disregard the presumption ot innocence and that is

called "the ordinary direction" in 1919.

Now, the four later cases, as I say, all refer

to the presumption of innocence. Nowhere have I

found anyone suggesting that what His Honour says

is correct; it is a presumption that one is not

guilty.	The phrase does not seem to be used in the
English authorities.	Woolmington, of course, is

the leading case discussing "beyond reasonable

doubt" and the cases which follow Woolmington are

all cases which discuss when there is some issue

raised by the accused as to which the onus may rest

on him and when it does not rest on him. It is in

that context that the English cases tend to discuss

it but none of those seem to use the phrase

Bellamy 6 10/10/90

"presumption of innocence" as far as I have been

able to ascertain.

The direction which resulted in the conviction being quashed, interestingly enough, in

Woolmington, was a direction in a case where the

accused fired a gun and killed someone and his

defence was that he pressed the trigger by

accident. The judge said once it is admitted that

he fired the gun and killed the person there is a

presumption of guilt which the accused has an onus

to rebut by proving that it was an accident and

that direction resulted in the conviction being

quashed. That, of course, does not discuss

presumptions the other way.

So, those are the authorities. The four

references are all passing references but, in my

respectful submission, they are correct. In my

respectful submission, the statement in Estate of

L, twice approved in this Court, is correct. There

is a presumption of innocence and it is a matter of

importance. The effect in this case, of course, as

I have set out in 1.4, is this: that the direction

would lead the jury to believe that one starts with

a neutral presumption which is easier to rebut than

a positive presumption of innocence.

TOOHEY J:	What is a neutral presumption?
MR BENNETT:	A presumption that - - -

TOOHEY J: It seems to have a sort of self inbuilt

inconsistency.

McHUGH J: It is a contradiction in terms.

MR BENNETT: There is an element of oxymoron about the

phrase, yes. Perhaps "neutral presumption" is an

unfortunate phrase.	I should say "the absence of a
presumption" almost.	On His Honour's test it

really is the absence of a presumption because it

is a presumption that it is not proved beyond

reasonable doubt.

A case where the jury thought that the accused

was probably guilty, but was not satisfied beyond

reasonable doubt, would be a case falling within

the presumption one says one starts with on His

Honour's test. It is a case where the accused gave

evidence, her evidence was exculpatory and not
inconsistent with the objective evidence, and the

height of the hurdle the Crown must leap is

therefore of importance. One can talk in terms of

what level one has to reach which is proof beyond

reasonable doubt, or one can talk in terms of how

great the hurdle is from where you start. If one

Bellamy 10/10/90

talks in terms of how great the hurdle is, this is

a direction which is likely to give a very

misleading impression. There is no clear

exposition in this Court of the nature of the

presumption. It is a question of importance, and

it is respectfully submitted that leave should be

granted.

The second point is an even shorter one. It

relates to the Jones v Dunkel direction. It

appears if Your Honours look at page 182 at

line 49. Your Honours recall the facts.	This is a
case where the accused was living with her

de facto. There was a safe which she was not able

physically to open. There were drugs in the safe.

Her evidence was - and she went into the witness

box - that she had discovered the drugs when he was

handling them.	She had immediately demanded that
he leave.	She thought he had taken the drugs with

him and then there was a raid and the drugs were

still there. The other accused, Mr Howe, had

pleaded guilty in front of this jury at the

beginning of the case and had been remanded for

sentence. His Honour said at line 49:

Well, there's one person who might have

assisted that and that person is Mr Howe.	You
know that Mr Howe is available.	You saw him

in Court last Wednesday yet Mr Howe has not

been called, either by the Crown or by the

accused. You must consider whether the

evidence of Mr Howe is relevant on the Crown's

side to the proof of the accused's guilt or

relevant on the accused's side to assist her

defence of the charges. You might think that

whatever Mr Howe could have said would not be of any assistance to the Crown in proving the guilt of the accused, but you might think that

Mr Howe's evidence might assist the accused in

her defence to the Crown case, because he, and

he alone, can corroborate the evidence of the

accused as to what happened that day three or

four days before.

Just stopping there, at the words, "3 February 1987", that is where the Court of Criminal Appeal

stopped in its quotation when it dealt with this

ground and if I might just read on, His Honour goes

on to say:

and that very day 3 February 1987 when she

said that she went to this boarding house to

pick up. It may well have been, and there is

a receipt in support of it, that Mr Howe, for
a reason or other, was residing in that

boarding house in the few days

before 3 February 1987.

Bellamy 8 10/10/90

That is the period between when she said she

required that he leave because of the drugs, and

when the arrest took place. So, there was a

receipt for that:

The accused has given you a reason for it and

you might have thought that Mr Howe could

corroborate that reason. The fact that he is

not called is something that you can take into

account when considering the evidence that has

been presented.

Now, what that ignores, Your Honours, is that Jones

v Dunkel only applies where one can show that there

is no other explanation for failing to call a

witness. Here, one has a person who has pleaded

guilty and is about to be sentenced and it is

seriously suggested that the accused could have
called him to corroborate her version which would

have meant: (a) that he resisted her attempts to

dissuade him from continuing in the enterprise,

lied to her about leaving heroin in the safe and in

that way callously permitted her to be placed in a

position where, although innocent, she would appear

to be guilty. One would hardly expect a person who

is about to be sentenced to give that sort of

evidence, so there was a very clear explanation
available on the evidence before the court as to

why he was not called, but His Honour does not

mention that. His Honour puts the rule in Jones v

Dunkel as being, in effect, an absolute rule and

does not give the qualification which, in my

respectful submission, was necessary. The issue of

law is whether, when a Jones v Dunkel direction is

given against an accused, it must include a

reference to the importance of the absence of an

explanation for not calling the witness.

That is particularly so in this case where the

direction was actually given in a form which goes

beyond Jones v Dunkel because if Your Honours look

at lines 13 to 15 on page 183, His Honour says:

The fact that he is not called is something

that you can take into account when

considering the evidence that has been

presented.

That is not what it can be used for at all, of

course. What it can be used for is for the purpose

of drawing the inference that his evidence would

not have assisted and in this case there is a very

good reason why his evidence would not have

assisted because he would have had a motive to give

the opposite version. In the light of that, the

direction put that way, in my respectful

submission, was quite misleading.

Bellamy 9 10/10/90

What the Court of Criminal Appeal said about

this is very brief. It appears at pages 205

to 206. At the bottom of page 205, Their Honours

refer to the ground of appeal. At page 206, they

set out the passage from the summing up and then

all that is said is:

This direction is in accordance with that

suggested in Buckland ..... and the appellant

cannot succeed on this ground.

Now, I handed to Your Honours copies of Buckland,

(1977) 2 NSWLR 452.

MASON CJ: Well, the passage quoted in the Court of Criminal

Appeal judgment is in accord with Buckland, is it

not?

MR BENNETT: That passage is, it is the bit after that is

not.

MASON CJ: It is the bit afterwards that you raise as -

MR BENNETT:  Yes. I will not take Your Honours to the

passage, Your Honours are familiar with it, but it

is my submission that that following passage is not

and, again, it is an important question whether the

Jones v Dunkel direction must be given in that way. The third matter is a matter which would

require amendment of the notice of appeal. It is a

point which is not of general importance but it is

a short clear point which arises on the summing up

and which was raised by counsel at the time. I

will just show Your Honours very briefly, it will

only take a minute or two.

Your Honours, at page 182 of the summing up.

I am sorry I should take Your Honours back, it is

at the bottom of page 181. There had been a note

book found in the premises and that note book had

about half a page, half a very small note book size

page of writing, I think about half a dozen lines.

My friend may correct me as to its length, he has

the exhibit and that note book showed what appeared
to be transactions in heroin and it was in the

accused's writing and what she said was that the

fish tank some time before had overflowed; it had

damaged some things including a note book and she

had therefore seen this note book just had this

page of figures; she had copied the page of

figures down into another note book because she had

damaged it by overflowing the fish tank. And she

also, incidentally, was a person who could not read

without her glasses and she was shown the note book

at the police station when she did not have her

Bellamy 10 10/10/90

glasses. What His Honour put in his summing up was

this, at line 50 on page 181:

You remember that she was asked about the note

book.	She was asked by, I think,
Sergeant Randall about the note book.	He gave

evidence about asking her ..... and she said "I

can't see it without my glasses.".	She was
asked "Have you written in the book?".	Now

whether she could read what was written or

not, she was shown a book. You have to

determine for yourselves whether, having

regard to the size of the book, and to her

evidence that except for reading she can see

well enough, she knew what the book was even

though she may not have been able to read what

was written on it.

That is fair enough.

And she answered, and Sergeant Randall was not

challenged ..... "I think I wrote the bit on the

top. I don't know who wrote the rest of it."

And yet in her evidence she said not only did

she write the bit on the top but she wrote it

all.	Now one of those statements must be
false.	Was the statement made to Sergeant

Randall true or false, or the statement made

in this Courtroom true or false? You as

judges of the fact, must decide but they both

cannot be true. Now you might think that she

knew what the book was, she knew where the

book was located, she could see that it was a

smallish notebook. She says now that,

following the filling up of the safe with

water from the fishtank, she later wrote out

the book copying exactly what was on a piece

of paper. Well, that might be true and it is

for you to determine whether it is or not, yet

both cannot be true: that she wrote the bit

on the top of it and 'I don't know who wrote

the rest',

that is one, and two: 

that she wrote it all copying it from the

other note. One must be a lie.

Now, we submit, that goes far beyond what a judge

is entitled to say to a jury. They are not

inconsistent at all. It is quite possible that she

has forgotten writing it up at the time that she is

asked about it. She could only see it vaguely

without her glasses. She is flustered being

interviewed at the police station and she can just

make out the bit at the top and says, I think I

wrote that; don't know who wrote the rest. Then

Bellamy 11 10/10/90

when she looks at it all she says, I wrote it all.

Now, in my submission, a judge in that situation is

not entitled to say that one must be a lie. It

just goes further than a judge is entitled to go in

a summing up.

Your Honours, that is all that I want to say

about that ground. I have prepared a proposed

additional ground of appeal which I seek leave to

add and I hand that to the Court.

McHUGH J: Did the trial judge give the standard direction

that the facts were a matter for the jury and that
they were to disregard anything he said about the

facts?

MR BENNETT:  Yes, Your Honour. The point was taken before

His Honour at page 185 line 10 and there is a discussion there and His Honour says that what I

have just put is just splitting hairs and therefore
he will not withdraw it. Your Honours, in my

submission, this is an appropriate case for the

grant of leave and the allowance of the appeal.

TOOHEY J:  Mr Bennett, was there any request for a further direction in regard to the last matter?

MR BENNETT: Yes, Your Honour, that appears at page 185 and

it is refused. At page 185, line 10, Mr Leary

says:

Yes, and in relation to the note book,

Your Honour said that the accused had said, "I

wrote the bit on top" according to what

Randall said, "I wrote the bit on top" but in

the witness box and she didn't have her

glasses .....

HIS HONOUR:  But she went further, "I don't

know who wrote the rest of it."

LEARY:	Yes, and that she didn't have her
glasses, and then -

there the submission is put. There is a discussion

and then His Honour says:

Well, I see that as splitting hairs, Mr Leary.

TOOHEY J: Yes, thank you.

MASON CJ: What about the Jones v Dunkel point? Was there a

direction sought on that?

MR BENNETT:  No, Your Honour, but before the Court of

Criminal Appeal that point was argued.

Bellamy 12 10/10/90

MASON CJ: Yes, I realize that.

MR BENNETT:  And, the court appears by inference to have

granted leave by dealing with the point and the
same applies to the first point, if Your Honours

please.

MASON CJ: Yes. Yes, Mr James. We need trouble you only on

the second point argued by Mr Bennett; that is, the

Jones v Dunkel direction.

MR JAMES:  May it please the Court. Could I hand up to the

Court copies of a written outline of argument which

was prepared last week. The written outline

includes grounds that are no longer being argued.

The Jones v Dunkel point is point 2.

MASON CJ: Thank you. Yes, well apart from the point made

that no redirection was sought, it does not meet

the argument that Mr Bennett has produced.

MR JAMES: If Your Honour pleases. It is submitted on

behalf of the respondent that Mr Howe was a person

whom the applicant could normally have been

expected to call in her defence to the Crown case.

I might say, Your Honour, that I did not expect

this point to be argued.	We had been informed last
week that it would not.	I only say that to explain

why no further outline has been lodged on this

particular point.

It is submitted on behalf of the respondent

that Mr Howe was a co-accused; that he was the

de facto husband of the applicant. He pleaded

guilty at the commencement of the trial. It was a

short trial. We would dispute that the fact that

he had not yet been sentenced was a reason why he

was not available. He was certainly available on

the first day of the trial.

With regard to the form of direction, it would

be conceded that the trial judge should have	directed, assuming he was entitled to give a
direction, that the jury could infer that the
evidence of Mr Howe would not have supported the
case of the applicant whereas what the trial judge
said was the fact that Mr Howe was not called was
something you can into account.

It would, however, be put on behalf of the

respondent that counsel at the trial did not apply

for any further direction. It is submitted on

behalf of the respondent that counsel at the trial

should be taken as having perceived, he being

immersed in the atmosphere of the trial, that there

was no need for any further direction and, in the

Bellamy 13 10/10/90

absence of any complaint, it would be submitted

that the direction was satisfactory.

It is submitted that in any event that the

present is not an appropriate case for special leave. Those would be the submissions for the respondent, Your Honour.

MASON CJ: Yes, thank you, Mr James. Do you wish to say

anything in reply, Mr Bennett?

MR BENNETT:  Only that counsel for the accused did submit

that the summing up was generally unfavourable a

number of times; "an imbalance", I think was the

phrase that he used but he did not make this

submission.

MASON CJ:  Yes. The Court will take a short adjournment in

order to consider the course it will take in this

matter.

AT 2.51 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.12 PM:

MASON CJ:  We are not persuaded that there was any error of

principle on the part of the Court of Criminal

Appeal or that there was any miscarriage of

justice.

With respect to the first point argued by counsel for the applicant, the trial judge was

wrong to instruct the jury that the presumption in

favour of the accused was not a presumption of

innocence, but one of not guilty. The presumption

is, in truth, one of innocence. However, when the

direction actually given by the trial judge is

understood in its context, we do not consider that

the jury would have been misled.

With respect to the second point argued by

counsel for the applicant, the suggested inadequacy

of the Jones v Dunkel direction, we would add that

no application for a redirection was made at the

trial.

Bellamy 14 10/10/90

For these reasons, the application for special

leave to appeal is refused.

AT 3.14 PM THE MATTER WAS ADJOURNED SINE DIE

Bellamy 15 10/10/90