Bielawski v The Queen

[1997] HCATrans 9

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A10 of 1996

B e t w e e n -

STANLEY STEPHEN BIELAWSKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 FEBRUARY 1997, AT 11.43 AM

Copyright in the High Court of Australia

MR K.V. BORICK:   If the Court pleases, I appear with MR N.A. KERNAHAN for the applicant.  (instructed by Johnston Withers)

MR S.A. MILLSTEED, QC:   May it please the Court, I appear with MR M.A. NICHOLAS for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

BRENNAN CJ:   Yes, Mr Borick.

MR BORICK:   Your Honours, a judge must instruct a jury as to the applicable law and from that point the jury has two tasks.  The first is to find the facts by applying the evidentiary and procedural rules explained by the judge.  Then the next task is to apply the law to the facts in order to determine the verdict.  It is the second stage, if the Court pleases, that the jury have to find the facts by applying the evidentiary and procedural rules explained by the judge which is important in this argument.

The two rules we were concerned with here were the necessity for a jury to separately consider the counts and what in shorthand terms I refer to as the Liberato direction which had to be given, because that was a case in effect of oath against oath.  His Honour Justice Millhouse giving the judgment of the Court of Criminal Appeal said that the jury are not concerned with the law.  With respect, that is clearly wrong.  The jury are keenly concerned and must be keenly concerned with the law because the law assumes that jurors will follow and do obey the judge’s instructions particularly as to substantive law and the evidentiary and procedural rules.

If what his Honour meant by that statement that the jury are not interested in rules of law - and taking it back to the sentence before that where he said a judge is not talking to a group of law students or lawyers - if he meant by that that the jury has no interest in the development of the law, then, with respect, that is wrong too because judges have to explain to juries not only what a rule is - for example, the Liberato direction - but it has to be explained to the jury, to use your Honour the Chief Justice’s words in Liberato itself, by adequate direction.

“By adequate direction” means he has to explain what the rule is and how it works and why it is so important and why the jury have to pay regard to it.  Similarly, if a judge is directing the jury on the accomplice warning or identification warning, he will not just say “Here’s the rule”, but is obliged to explain to the jury the reason why that rule exists and the importance of it.  So that to say that a jury have no interest in the rules of law, in any sense in which his Honour meant that, is wrong.

The second complaint we have in relation to the judgment of the Court of Criminal Appeal is that his Honour is saying that judges do not like to correct mistakes if they make them and that in this instance, when the trial judge brought the jury back at the request of the prosecutor as well as the defence counsel to correct a mistake he had made, his Honour prefaced it by using the words, “As I said before”.  What follows in the redirection, his Honour had said that before but his Honour never corrected his mistake.  He never said, “What I said before was wrong”.

Justice Millhouse in the judgment of the Court of Criminal Appeal said, “Well, that’s a counsel of perfection expecting jurors to listen to every word and analyse every word”.  In my respectful submission, an appellate court is not entitled to assume that a jury does not listen to and pay regard to the judge’s instructions.  So, just using that example of the words “As I told you before”, if the jury did listen to it they would not have appreciated the judge was correcting an error.  If they did not listen to it and paid no attention to it, they still would not have realised that here the judge was correcting an error.  In another sense, the importance of the words ‑ ‑ ‑

BRENNAN CJ:   The real question is whether the jury have to consider this matter under a false understanding.  Having regard to the terms of the redirection that was given, couild it be thought that the jury would have regarded this matter as anything other than a case of two counts each to be considered separately.

MR BORICK:   In my submission, the jury would have been left with the direction they had got earlier from the trial judge, that in the circumstances of this case it was not possible to find him guilty of one count and not guilty on the other count, because his Honour specifically ‑ ‑ ‑

KIRBY J:   You do not complain about the redirection, as I understand it, your complaint is that the judge should have leant the authority of his office to saying, “Well, I made a mistake earlier and you can disregard that.  This is what I now tell you.”  Is that it?

MR BORICK:   Yes, that is it.

KIRBY J:   But when he came back and redirected them it was pretty clear ‑ and it was what they would have gone out with ringing in their ears - and it was a redirection as sought.  Was any further elaboration requested at the trial?

MR BORICK:   No, no further elaboration was requested at the trial but there had been a very extensive argument before his Honour, with both counsel having quite a lot to say about the various other directions that there was a problem with.  It is correct that his Honour, when he used the words “as I said before” was literally quite right, because he had told them in the main summing up that the jury had to consider the counts separately, but the difficulty was, he said, “In the circumstances of this case it is not really possible for you to find this accused guilty of one count and not guilty of the other and if you find one of the events proven, then you will not have to worry about this.” 

So it is the linking together of a Court of Criminal Appeal saying, “Well, look, the juries are not too interested in rules of law and there is a rule of law about having to consider counts separately, but if the case is such, in the opinion of the judge, that this rule of law is not really applicable to this case, well, then, they can put it to one side.”  So in seeking special leave to this Court it is not so much an argument of whether there was an adequate redirection or not, but it is the fact that the approach of the Court of Criminal Appeal to the evidentiary and procedural rules are applicable is to totally downgrade them. 

Effectively, in another sense, what the jury are being told is, “On the one hand, you cannot do as you see fit when you are at the second stage of finding the facts, obeying the evidentiary procedure rules.  You have got to obey those rules in coming to your findings of fact.”  Then on the other hand, they are being told that there are no constraints on the way in which a jury go about their fact-finding process.  There are, in fact, constraints and, in my respectful submission, by a Court of Criminal Appeal saying that it does not matter too much about these rules and the jury have got no interest in them is a serious error in approach. 

In my submission, this proposed appellant did not have a fair trial.  The effect of the direction, that they had to consider the counts separately, was, in my submission, we submit it had no significance at all in the context of what went before.  The redirection was not just inadequate, as my learned friend has put in his submission, it was plainly wrong and not corrected.  In relation to the Liberato direction ‑ ‑ ‑

KIRBY J:   You say plainly wrong, but even if it were preferable that the judge made it clear that he was correcting what he had said earlier, the effect of what he said, read in the context, is demonstrably to correct what he had said earlier and no further elaboration was sought by those who were there, who had gone through the argument, who knew the mood and feeling of the trial, and in those circumstances it is a lot to ask us to say the jury was left with, because of four words, left with the impression that notwithstanding the very clear four‑fold direction given on the redirection, that what he said earlier was still in force.  It is a little artificial, in other words, in the context of the trial.

MR BORICK:   With respect, your Honour, perhaps I have not made my position clear.  This was not a redirection at all because he had already told them in the summing up they had to consider the counts separately; he was obliged to do that.

KIRBY J:   Yes.

MR BORICK:   The words, as I said before, were quite right in that sense, but he never corrected it, in any sense at all, the other direction he had given that it did not matter in this case.  The real point of the special leave application ‑ ‑ ‑

KIRBY J:   This was a redirection.  It appears on page 49 at line 36.  What happened was, he gave his first direction.  In that you say there was a certain inconsistency, he said consider them separately but in the practicality of this case you will convict of both or you will not convict of one.  Then there was the argument, and then he gave the correction, and then he gave the four directions which are very clear, and the question is, looking at the whole of the summing up and keeping in mind that no further elaboration was sought, whether or not the jury would have been really left in any doubt or misdirected by the earlier statement, simply because the judge did not say, as I personally think it might have been preferable, that he was correcting something that had earlier been said to them.

MR BORICK:   If your Honour is against me on that point, I turn to the second point, and it is the fact that the proper direction, or an adequate direction for the Liberato rule, I will call it, was not given.  There can be, with respect, no doubt about that and the Court of Criminal Appeal looked at it and said, “Well, looked at overall, it is near enough”.  That was the argument advanced by ‑ ‑ ‑

DAWSON J:   There is no Liberato rule, Mr Borick.  It so happens that in a dissenting judgment his Honour the Chief Justice put it as clearly as it can be put, but it does not mean that it has to be put in those terms in every case by way of a rule.

MR BORICK:   I totally, with respect, agree and I think when Justice Matheson said that those words should be used, that is wrong.  It is simply getting the idea across by adequate direction.  That is going to

depend upon the circumstances of the case as to how you will have to frame that direction.  That did not happen here.  It was a case of oath against oath.  Then we come to the Court of Criminal Appeal saying two things about it.  They said firstly it does not really matter because the jury are not law students and they do not care about the rules of law, and in my respectful submission, this Court should correct that approach.

Then the Court of Criminal Appeal said it is all alright because he gave them the general directions that the prosecution have to prove the case beyond reasonable doubt, and cites a couple of examples at the end of the judgment.  That did not go back to the necessity in this case to give the jury guidance as to how they should handle a situation of who do I believe, which is the genesis of the Liberato rule.  In each instance, it is not so much the fact that the two features that we are talking about - separate consideration, and how to explain to the jury to answer the question, “Who do I believe?”, the Liberato concept - it is the attitude of the Court of Criminal Appeal in saying to the jury either do not listen or do not take any notice of rules, and therefore near enough is good enough, and with respect, that is not sufficient in a situation where people’s reputation and liberty are at stake.  Those are my submissions.

BRENNAN CJ:   Thank you, Mr Borick.  We need not trouble you, Mr Millsteed. 

The questions in this application relate to the conformity of a trial judge’s directions to established principle.  That is not a ground for special leave to appeal.  In any event, the prospects of success on appeal are not sufficient to warrant a grant of special leave.  For these reasons, special leave will be refused.

AT 11.57 AM THE MATTER WAS CONCLUDED