Bint v The Queen

[1998] HCATrans 63

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 1997

B e t w e e n -

PAUL WARREN BINT

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A22 of 1997

B e t w e e n -

GRAHAM CHRISTOPHER BUTTERWORTH

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 12 MARCH 1998, AT 12.38 PM

Copyright in the High Court of Australia

___________________________

MRS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR C.J. KOURAKIS, QC, for the applicant, Bint.  (instructed by Caldicott & Co.)

MR P.J. RICE:May it please the Court, I appear with my learned friend, MR D. PETRACCARO, for the applicant, Butterworth.  (instructed by Caldicott & Co)

MS W.J. ABRAHAM:   May it please the Court, I appear with my learned friend, MS H.E. WIGHTON, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

HAYNE J:   Yes, thank you, Mrs Shaw.  Subject to anything that counsel may say, we would propose to hear each applicant before hearing from the respondent.

MRS SHAW:   Thank you, your Honours.  Your Honours, the specific question raised by this application is whether a jury is entitled to be assisted by the failure of the accused to give evidence in their evaluation of identification evidence.  It is submitted further, in this case, that the fair trial of the applicant miscarried because the learned trial judge, in his summing up, failed to give the jury any specific warnings in relation to the particular features of the identification evidence which was critical to the Crown case and, which features, in this case, we say, undermined the reliability of the evidence.

The question is deserving of special leave, in our respectful submission, because there exists a conflict between the State Courts of Appeal in relation to the application of the principles in the judgment of this Court in Wessensteiner.

In the present case the South Australian Court of Appeal has held that there was no basis to limit the application of the principles in Weissensteiner to cases which depend upon circumstantial evidence nor, indeed, for exempting cases which give rise to an issue of disputed identification.  The Queensland Court of Criminal Appeal in Demeter’s Case (1995) 77 A Crim R 462, has held that the principles in Weissensteiner were not limited to cases depending on circumstantial evidence.  On the other hand, a differently constituted Court of Appeal in Queensland in Kanaveilomani (1994) 72 A Crim R 492 by a majority held that the judgment in Weissensteiner was limited in its application to circumstantial cases and then only to cases where it could be established that the accused was in possession of peculiar knowledge about the events in question. 

The Western Australian Court of Appeal in Boxer’s Case (1995) 81 A Crim R 299, held that it was not permissible to direct a jury that it may more readily find facts proved in a case where an accused had not given evidence; rather the direction should have been given in that case to the effect that the jury was entitled to take into account the failure of the accused to give evidence when considering the inferences which they were invited to draw from the facts which were directly proved. In the New South Wales Court of Appeal in Reg v OGD, a 1997 unreported decision delivered on 3 June 1997, his Honour Justice Sperling in particular held that the principles in Weissensteiner were not of general application.  We refer to the judgment of the Supreme Court of Canada in Reg v Noble (1997) 146 DLR (4th) 385, where the Supreme Court held that the suggestions or the questions of the use of silence of the accused should be severely limited.

We say, in this case, that if the approach of the Court of Appeal in Boxer’s Case is correct, then such a direction, as was given in this case, ought not to be given in the context of the evaluation of disputed identification evidence.  Even if the principle - - -

HAYNE J:   Mrs Shaw, what do you say the direction in this case amounted to?  It is, I take it, the direction that appears at application book 28.

MRS SHAW:   Page 28, your Honour.  Bearing in mind that the issue for the jury in this case was to evaluate the identification of the witness Pham, the jury were being invited or directed that they were entitled to take into account the fact that the accused had not given evidence.

HAYNE J:   How does that submission sit with the earlier statements, I think there are three or four of them, by the judge that silence does not:

displace the onus that is on the Crown.  A failure to offer explanation is not evidence.  Neither can silence be seen to bolster the Crown case.

MRS SHAW:   Yes.  Your Honour, all of those propositions are consistent with a general approach to a Crown case, but they do not exclude, and if there was confusion, there is no reason to think that the jury would have ignored this direction.  But the effect of the direction is when one approaches the specific question of relying on the identification evidence, not necessarily proof of the Crown case in its entirety, and to the evaluation of that evidence, the silence of the accused might assist them.  We say that if the jury had doubts about the reliability of Mr Pham’s evidence, and heeded his Honour’s warning, then any doubts about that reliability may have been dissipated as a result of this direction.

The jury are effectively being directed that they are entitled to take into account, and be assisted by, that silence.  We say that in fact and in logic the silence cannot assist that evaluation, except if one reverses the onus or in some improper way uses or contravenes the presumption of innocence.  Because, whereas in Weissensteiner, the critical question was whether or not in that case, according to the preconditions that the majority contemplated, the accused was in possession of peculiar knowledge which would enable him to explain unexplained circumstances, in relation to the issue of identification, first of all, the fact that the Crown case depends on an identifying witness means that there is not a peculiar knowledge in him and, more importantly, the failure to give evidence cannot in any way assist to explain why the witness might be mistaken, or in any way resolve the discrepancy, for example, in this witness’s description of the man who he said was the Sambucca man, and later asserted was Bint - the discrepancy between the description given on the very night and the actual appearance of Bint.  The silence cannot meet that, nor can anything said by Bint explain it. 

So that because identification evidence has been recognised as having its inherent problems, its inherent risk of mistake, that risk cannot in any way be met by an accused’s silence.  It is wrong in this crucial area, we say, to enable a jury to take into account that right of the accused to remain silent.

We say that it is an important question for the Court in the light of Domican’s Case and, in particular, in view of the approach of this Court in Domican, for example, that the identification evidence is still required to be the subject of a direction even if there exists corroboration.  In this case, even if the accused had denied the offence on oath and was disbelieved, that denial and that disbelief could not assist the jury in the evaluation of the identification evidence because of the special features that the courts accept are involved in the risk of mistake.

Your Honours, we say that it is plain from the conflict in the various States that the principles of Weissensteiner and their application do justify special leave. In this particular case, I point out, your Honours, that the objection was raised to the direction by the Crown at page 41 of the application book and by counsel for Bint at page 42.

In the summing up, your Honours, we say that as far as the trial judge’s summing up is concerned, it was defective in that although it referred to general warnings of identification, it utterly failed to comply with the principles of this Court in Domican by referring the jury to the specific features of the evidence which they were obliged to take into account in undermining or considering the reliability of the identification evidence.

The summing up of the learned trial judge on this topic commences at page 25 of the application book.  His Honour gives the jury a general warning at line 20 about the risk of mistake, asks the jury to bear in mind evidence, at page 26 poses a number of questions to them to consider, and refers to, at the bottom of page 26, the lesser value of a photographic identification in general.  At no stage during that summing up or during his direction does he refer the jury to the specific features of Pham’s evidence in this case, in particular, the description what in fact it was or what the lighting was.  Those matters, your Honours, were raised by counsel.

The failure of his Honour to refer to the specific features of the identification evidence was raised both by counsel for Bint, Mr Caldicott, at page 43 of the application book, Mr Rice, counsel for the applicant, Butterworth, at page 44, where he specifically read to his Honour the passage from Domican at page 564, where the court said that the judge was duty bound to refer the jury to the specific features of the evidence and we say to direct them to take those features into account.

HAYNE J:   Could you list for me what features of this identification should have been the subject of specific direction, but were not?

MRS SHAW:   Your Honours, they are summarised in the applicant’s summary of argument, in particular, at pages 104 to 105, and I refer, in particular, the specific features were that Pham purported to identify Bint as he was running away from the saloon bar, so that his opportunity for observation was, at best, a matter of seconds.  Secondly, and most importantly, he had described to the police on the Wednesday night the description of the Sambucca man as a man with short, light brown hair and a round face.  His evidence was that it was the same man, the Sambucca man, who was the leader on the Thursday night, and who he later said was Bint.  It so happened that Bint was arrested that night.  The police described Bint’s appearance on the Wednesday night.  It was inconsistent with the description of Pham, in particular, because he had dark brown hair below his shoulders and he had facial hair, which is described as a few patches.

The other important feature is that when Bint came to select - when Pham came to select the Sambucca man from the photographic line up, that is from a group of photographs, only two photographs depicted a person with injuries, Bint and Butterworth.  And, of course, Pham was aware, and these were photographs taken on the Wednesday night, Pham was aware that there had been injuries to persons on the Wednesday night, so those photographs were not a fair display in the sense that the two photographs selected show persons with injuries.  So that was an important feature which undermined the reliability of the identification evidence that ought to have been brought to the jury’s attention.

Thirdly, the person who witnessed the events when Pham was set upon in the saloon bar described the leader differently to what Pham did, bearing in mind that Pham said that the leader was the Sambucca man.  He described him - this is at page 107 of the outline, 5.1 - as having a moustache, not a beard, distinctive mark across the bridge of his nose, and gave a totally different account of events in that room to Pham.  Pham said he was able to make this observation because he was running away.  Mr Bryson, who witnessed the event, said that in fact Pham did not run away but was set upon.

Ms Tolmer gave evidence again which conflicted with Pham, that he was set upon in a different room, and she described the leader differently and, again, that undermined the reliability of Pham’s claim that he had the opportunity to make this observation.

Now, none of those features - I should add this, too, your Honours, that Mr Pham suffered injuries.  There was evidence that he had head injury, evidence from Mr McCulloch as to concussion, and the potential for there being a loss of memory for some seconds prior to that, another feature of the evidence which was capable of undermining the reliability of Pham’s identification. 

All of those matters, we say, were features which were significant in relation to the reliability of his evidence.  Not one of them was referred to in the context of his Honour’s direction and we say that, in those circumstances, this man, in his summing up, received a direction - that is, a Weissensteiner-type direction - to take into account in the assessment of identification something that they should not have, but he did not receive any directions as to what the jury should have taken into account in relation to the issue of identification.

The importance of the judgment of the Court of Criminal Appeal, your Honours, in particular in the judgment of his Honour Justice Cox, commencing at page 73 of the application book, is that despite the learned judge’s summing up not including any specific warning in addition to the general warning, the court held that the summing up was not defective and did not give rise to a miscarriage of justice.  We say, importantly, his Honour Justice Cox, in his discussion of the principles of Domican at the bottom of page 79, says that - page 47:

Some degree of selection was permitted, provided that the Judge did not overlook any evidence that the jury might reasonably regard as having some cogency, favourable to the accused, in the resolution of the identification issues.

His Honour went on to say:

It will often be best, therefore, if practicable, to list the matters in question -

We say that it is plain from Domican that there is not a discretion available to the judge in relation to any significant features and, secondly, it is not enough to list matters; it is incumbent upon the trial judge to direct the jury that they are duty bound to take those matters into account with the authority of the judge’s office behind the direction.

His Honour then, at page 80, refers to a summary of the evidence of Pham, but wrongly, we say, confines his consideration at about line 7 to the evidence of other witnesses.  He concluded to tell the jury what other witnesses said might not be enough.  We say that in that discussion his Honour fails to recognise that the most critical features relevant here were the matters inherent in Mr Phan’s own evidence, and in the weakness in the photographic identification by reason of the appearance of injuries.

At page 82 his Honour concludes by saying that the criticisms of the identification direction ‑ and those are the ones that I have outlined to your Honours:

were to be ranked.....rather as talking points for the jury than as matters of significance -

We say if the features that I have outlined to you inherent in the identification evidence of Pham, which were worthy of undermining the reliability of his evidence, are to be classified as mere talking points, then the authority of Domican is watered down and, more importantly, this particular man did not receive the trial to which he was entitled.

So we say, your Honours, that in two respects this is deserving of special leave:  one, the conflict that exists in relation to Weissensteiner’s application, and whether or not the two preconditions referred to in the majority ought to apply, namely that the direction would only be given if the accused is in possession of peculiar knowledge as to the events, and where the defects in the prosecution case do not require a response; secondly, we say as a matter of special leave, the importance of the warnings in identification evidence ought not to be watered down in any sense.  An accused should be entitled to directions which draw the jury’s attention to the specific features in the case before them, otherwise there is a risk of miscarriage of justice.  If the Court pleases.

HAYNE J:   Yes, thank you, Mrs Shaw.  Mr Rice.

MR RICE:   If your Honours please, some of the legal arguments I propose to address are the same as Mrs Shaw’s so I will only touch upon them and not reiterate them.  I am content to adopt Mrs Shaw’s submissions about the legal requirements of Domican’s Case so far as the strict dictates of it to identification evidence.  The position of Butterworth, if the Court pleases, is a little bit different than Bint in terms of the actual evidence itself, so I would like to spend a minute or so touching on that.

The prosecution case against Butterworth falls into essentially two areas.  He was one of those who was there on the Wednesday and he was injured in the fighting with staff and patrons, hence it could be said he, amongst others, had a motive for revenge or a motive to return.  Also, in combination with that, one of the group that was leaving on the Wednesday night was heard to assert that they would be back.  It would not necessarily be pushed home to Butterworth but certainly it was - Butterworth could well have been amongst the group from which that comment emanated.  So there was the evidence that Butterworth was there on the Wednesday night and there is certainly evidence to suggest that he had a motive to return at some stage.

The second area of evidence, in my submission, was quite uncertain and quite equivocal and amounted, in the main, to a selection of a photograph, not an identification, but a selection of a photograph by Butterworth of the victim Pham about seven weeks after these events.  As Mrs Shaw said, there was no doubt on the evidence that Pham suffered very serious head injuries. 

If I could take the Court to the judgment of Justice Cox in the application book at 75 and 76, because much of the relevant evidence to which I now refer is summarised by his Honour. At the very bottom of page 75:

Pham said in evidence that he told the police on November 2, when he was in - - -

HAYNE J:   Mr Rice, you should assume that we have read the judgment.

MR RICE:   I am indebted to your Honour.  What that makes plain, in my submission, is that there was never any positive identification seven weeks after the event by Pham of Butterworth.  At most, it seems to have been that at that time Pham was able to say that he was 70 per cent sure that the photograph of that man was the middle man from the Wednesday evening.

He was never ever able, at that time, to elevate his evidence to what I might call certainty, a positive identification.  That is referred to, without going to it in detail, in the application book in the summing up at pages 35 and 36.  But the important point from Butterworth’s - - -

HAYNE J:   And, importantly, Mr Rice, is it not, over to 37, particularly in the first three paragraphs on 37?

MR RICE:   Yes.  And that was one of the important features of the case for Butterworth was that, at a time after what I will call the 70 per cent identification, Pham over time, because he saw Bint and Butterworth at the committal, because he saw them on the voir dire, was then able, later, to say, “I am now 100 per cent sure”.

HAYNE J:   Did not the trial judge tell the jury to put aside the last version of the identification?

MR RICE:   Not in sufficiently strong terms, in my submission, because what his Honour says at the application book 37, line 10, is:

So I will probably tell you to put that aside and concentrate on his initial identification and the way he explained that to you.

And without wanting to read large slabs from the application book, if I could go back to page 36, because on the last paragraph of 36 there is, as it were, his explanation of what it is that he meant.  Because when the photograph was shown to him he said, “Well, it might be him, it is hard to tell”.  Then he says, at line 35:

He said he put it this way, ‘Because in that time in the photos, the man’s got no.7, he’s got a beard, bleeding, light bruises.  That’s hard thing for me to recognise.  If without the bruises, I would have about 100% was on Wednesday night and Thursday night, but because he has the bruises, the bruises, the bruise and also the bleeding, it’s hard for me to recognise him exactly.  That’s why I won’t, don’t want to say “Okay, that’s him” and then mistakes.  That’s why I said about 70%.

So that is the way in which his Honour summed up in respect of Pham.  But the problem with that evidence from the prosecution’s point of view was that those features of the photograph that Pham was trying to peel away, namely the injuries, should have been the very reason why he identified Pham from the Thursday night because the photograph was taken at the end of the melee when the police arrested them on the Wednesday night.  They then used that photograph for, in effect, the Thursday night ID.

So Pham should not have been trying to peel away those features.  Pham should have been saying, “Because of those features, I make a positive ID”.  He does not do that and says, “If you stripped them away, then I would be 100 per cent.”  That emphasises, in our submission, that what Pham was really doing was identifying the man who was there on the Wednesday night, not the Thursday night.  And he should have been able to make the positive identification from the bloodied photographs, not in their absence.

So the important point, from Butterworth’s point of view, is that there was no identification in the accepted sense of Pham.  It might be No 7, but it is really hard.  In my submission, he was really looking for the man on the Wednesday night and not, indeed, effecting anything like identification of the man who was there on the Thursday night.

Indeed, Justice Cox, in his judgment, does not elevate what Pham says to an identification because, at page 78 of the application book, line 44, where there is a discussion about Pham and the quality of his evidence:

Pham indicated to the jury that he found Butterworth’s photograph unsatisfactory and that his past identification became unqualified.

That was not quite the bit I was actually going to refer to.  But certainly his Honour Justice Cox did not at any stage say that there was a positive identification by Pham of Butterworth.  And, importantly from Butterworth’s point of view, there was a very limited opportunity to see anyone and what Pham said was that not when the group burst through the door on the Thursday night did he identify Butterworth, but in what he referred to as “a chase” in the next perhaps 10 or 20 seconds, that he then said that the identification took place.  But that was an identification coloured by fear and him running away and a lack of proper opportunity.

So, if your Honours please, what we say here is that there were two areas of evidence that really were relevant to Butterworth, a motive for revenge, so be it, but only at most, as the jury were told, a 70 per cent recognition or picking out of him.  Neither individually nor together was that enough to prove guilt beyond reasonable doubt.  There needed to be, on our submission, a positive ID and there never was one.

Butterworth, as the Court knows, did not give evidence or call any witness and we say here that the questions for special leave that really have been touched upon in part by Ms Shaw arise.  When an accused person fails to give evidence, is the so‑called Weissensteiner direction of general application in a sense that it applies to any case and Ms Shaw has dealt with the conflicts in the State courts about that.

HAYNE J:   The question, Mr Rice, as to the so‑called Weissensteiner direction is whether the direction given here was a Weissensteiner direction or whether this comment found in the context in which you do find it amounts to any invitation to the jury to make use of the failure to give evidence in any way or at least in any impermissible way.

MR RICE:   If your Honour pleases, the direction that was given, whether one styles it as a Weissensteiner direction or not, can only have had, in our submission, the effect of getting the prosecution over that “beyond a reasonable doubt” line because in its absence, in our submission, there was simply not enough to get them over that line and, in our submission, whether one calls it a Weissensteiner direction perhaps does not matter a great deal.  The effect of it was to invite the jury to consider the absence of evidence from Butterworth in evaluating the identification evidence.

In our submission, you cannot use the absence of the accused in evaluating evidence in an identification case.  Either the evidence is good enough or it is not good enough.  If it is intrinsically good enough, then so be it and too bad for the applicant.  If it is not intrinsically good enough, you cannot then use the absence of the explanation by Butterworth to somehow evaluate that evidence because the evidence either stands or falls on its own merits, in our submission.

Another way of expressing the same problem, and what we say is an appropriate special leave point, is:  is it an appropriate form of direction in an identification case or should it be in some way confined?  I have already dealt with what, in my submission, was simply an error of approach because you cannot use the absence of evidence in this type of case as a means of evaluating the evidence that is there. 

We submit that in an area of the law that is notorious for inaccuracies and miscarriages of justice, such a direction as was given, whether it is a Weissensteiner direction or not, revives again the dangers of this sort of evidence and reduces the effect of the solemn warning that his Honour, regretfully in this case, did not give to the jury.

The other special leave points, we say, that arise in this application are these:  if the direction is proposed to be given, what inquiry should a trial judge undertake of counsel for the accused as to possible explanations for not giving such a direction?  In other words, those factors that may impinge upon the discretion to give the direction, because it probably, clearly, is a discretion.  That might have been counsel’s advice, or alternatively, one very good reason is that the quality of the evidence is such that it is inherently weak, and there should be no reason, and it should fall under its own weight, or lack of it, and that there should be no requirement or expectation that an accused person would give evidence.

HAYNE J:   I must say, Mr Rice, at least at first sight, the notion that a judge should start examining counsel for the accused about why his or her client did not give evidence is a rather startling proposition, but I understand you do not put this at the forefront of your argument.

MR RICE:   Certainly not, your Honour, but it might be that counsel can provide some assistance as to why evidence was not adduced or given by an accused person.

We also say, as an appropriate vehicle for special leave, that whether Weissensteiner has general application or not, does the practical effect of a direction, and the practical effect of the direction here, involve a diminution of the right to silence?  Here, we would suggest, there are conflicts and approaches of decisions of this Court on that point.  We suggest that the effect of Weissensteiner is a non‑legislative erosion of the right to silence.

We refer, first of all in this regard, to Petty and Maiden where the majority in obiter comments emphasised the fundamental right of silence.  That majority was Chief Justice Mason, Justices Deane, Toohey and McHugh, and other judges - Justice Brennan, as he then was, at 104 and Justice Gaudron at 128 - emphasise that fact also.  Arising from Petty and Maiden’s Case was a rejection of the distinction between inferences adverse to guilt and those adverse to credibility, and the Court held in that case that that was not a proper distinction and one that they were not prepared to accept.

Then in Glennon’s Case 179 CLR 1 this Court was then considering whether there had been an erroneous application of the proviso where there had been a misdirection by the trial judge on the applicant’s exercise of his right to silence when questioned by the police. The suggestion was made by the trial judge there that the jury might use the accused’s silence to test the veracity of his evidence at trial. The Crown conceded that was a misdirection in terms of Petty and Maiden and, although the stage at which the right to silence was invoked in Petty and in Glennon was at the police questioning stage, both cases reaffirmed the right to silence is a fundamental right.

So far as Weissensteiner itself is concerned, could I take the members of the Court to the case itself.  It is in the cases provided for the purposes of the application.

HAYNE J:   For what purpose, Mr Rice?  To make what point or establish what proposition?

MR RICE:   The proposition, your Honour, is that at the bottom of page 228 and over on to page 229 of that case the Court draws a distinction, albeit a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply “because the accused has not supported any hypothesis”, et cetera.  What we say there, your Honours, is that there is clearly there - I make the point - how can one more safely act on identification evidence merely because the accused has not given evidence, but importantly also the tail end of that sentence beginning on line 3:

because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge.

That impliedly reverses the onus because there seems to be an expectation.  You can draw the inference more safely “because the accused has not supported any hypothesis”, et cetera.  There quite clearly, in our submission, in those words - and if this is a conventional direction, it reverses the onus because there seems to be an expectation that the accused could then give some evidence.  We suggest, if your Honours please, that means that there is now a distinction between drawing an inference of guilt merely from

silence, which is not permitted, and using that same silence to make an inference of guilt safer.

Now, we would suggest that that gets very close to the rejected distinction in Petty between an inference adverse to guilt and an inference adverse to credibility.  We suggest that it is an unrealistic distinction and, if anything, illusory and should give rise in its own right to the granting of special leave.  If your Honours please.

HAYNE J:   Yes, thank you, Mr Rice.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, if I might commence with the question that is posed that is said to arise from the direction at page 28 of the application book, and that is the accused’s failure to give evidence.  In my submission, there are two very fundamental problems in this particular case with the question raised and that is that my friends are basing the question on the fact that this case involved identification and are arguing that therefore identification evidence, per se, ought to be in some way exempt from a direction or any comment by a trial judge about the failure to give evidence.

In my submission, in theory, that is not so.  But there are two more fundamental problems in this case.  That is, first of all, that in this case, although the Crown relied on identification evidence by a witness, there was in addition a very strong body of circumstantial evidence that supported that identification.  So the jury at the end of the day had to decide whether each of the applicants was guilty on all of the evidence, not simply the evidence in relation to Mr Pham.

HAYNE J:   How do you say, Ms Abraham, we should understand the direction that is now impugned?  What was the trial judge telling the jury?

MS ABRAHAM:   In my submission, the trial judge was telling the jury no more than that the evidence was uncontradicted and that clearly, as the Court has said in Weissensteiner, there is a truism that follows from that, namely, when there is evidence in a case and an accused might be able to give evidence on topics within their knowledge, then if they do not, and clearly the jury are of the view that that evidence might explain or contradict the evidence, then of course one can accept the evidence more easily.  That, in fact, as the High Court said in Weissensteiner, is a truism.  In my submission, there is nothing more than that being said here.  That is, indeed, the second problem with respect to my friend’s argument in this case, that it is a question for special leave in this case and that is that the direction given here is, indeed, very mild.  It says no more than the obvious, with respect, and the obvious ‑ ‑ ‑

CALLINAN J:   Ms Abraham, can I draw your attention to page 82 of the application book, please, because I am troubled by the reference there to a “talking point” for the jury as opposed to a “matter of significance” in that second paragraph.  How is a jury to know that matters that the trial judge is explaining are “talking points” rather than “matters of significance”?

MS ABRAHAM:   In my submission, what the court is there saying in relation to the obligations under Domican is that, of course, the trial judge has an obligation to isolate and identify matters of significance that might tend to undermine - might be reasonably said to undermine the identification.  The court had previously made a comment that, given that that is the obligation on the court, it follows that not every point that defence counsel makes is necessarily a significant point.

CALLINAN J:   No, but that is not the point.  No, no, please, Ms Abraham, that is not the point.  Is there any distinction?  I mean, there plainly is, is there not, between a talking point and a matter of significance?

MS ABRAHAM:   Yes, clearly there is and, in my submission - - -

CALLINAN J:   You see, on appeal, the judge, at page 82, seems to be accepting that these were legitimate criticisms, but he would rank them in some way as talking points only, even though they are legitimate.

MS ABRAHAM:   With respect, I disagree with your Honour’s interpretation, because if one reads the judgment in its entirety, the Court of Appeal, first of all, outlined what the obligations were, and have, in my submission, correctly outlined that, and then raised the question of whether, in this particular case, and in the context in which this summing up took place, has the appropriate directions been given, which includes has there been the sufficient isolation of matters of significance?  When the court considered that, in my submission, the court determined that there were matters that were put that were matters that were appropriate, and considered there was only one matter that had been argued before them that was a matter of significance which could have been put and, indeed, should have been put, better, and that is the evidence of Bryson.

CALLINAN J:   What do you say about the photographs?  Is it correct that the only photographs of injured people were of the two accused?

MS ABRAHAM:   My understanding is that the photographs did show some blood or injury on them, yes.

CALLINAN J:   And they were the only two people who were photographed who showed any signs of any injuries?

MS ABRAHAM:   That is correct.  But what the witness was shown was, indeed, a large number of photographs - a large number of folders, rather - and I think the photographs are numbered 300 and whatever and, in relation to the photographs, was asked, in relation to both nights, and he identified two in relation to both nights.  In my submission, it is incorrect to say that the Court of Appeal has made many of these factors, or referred to many of these factors as talking points, because, in my submission, if one - - -

CALLINAN J:   I think you are right about that, Ms Abraham.  You have satisfied me about that aspect of the matter.

MS ABRAHAM:   Thank you, sir.  When one is considering the question of the identification direction, though, in my submission, it is important that one looks at the context, because Domican makes it clear that there are no preconceived formulas, but what one has to do is give a direction to enable the jury to appreciate the dangers generally in relation to identification and this particular case.  This summing up was given, or delivered, against a background of addresses having been conducted by counsel, but had obviously immediately preceded it over the preceding days, that lasted six hours and had - - -

CALLINAN J:   But is not the whole point of Domican that counsel’s addresses are not enough, that it is for the judge, with the authority of his or her office, to point out deficiencies to the jury?

MS ABRAHAM:   I accept that entirely, your Honour, but one then looks at the depth at which one needs to go into the particular matter.  If it had been said over and over again, over the preceding days, “This is what this witness has said, this is what that witness has said,” and there had been slabs of evidence read to the jury, in my submission, it is correct, as the Court of Appeal said in the judgment of his Honour Justice Cox, that there is a limit to what one need do in the summing up.  It has to be appropriate to raise the matter, obviously, and with the authority of the office behind it, but it might be in those circumstances, of course, that raising it in not as much detail as might be required in another trial is sufficient, because as Justice Cox pointed out, that it would have indeed try the jury’s patience to in effect go over what had been gone over for the last six hours.  That is why, in my submission, I was making the point about the context of the trial being important.

HAYNE J:   Can I take you, Ms Abraham, perhaps out of your order, but counsel for the applicants identified at least four matters which it was said the judge should have but did not point out:  one, the opportunity for observation.  As to that, reference might be made to page 26, lines 1 to 4.  The second item was differences in the level of certainty of identification over time.  As to that, reference might be made to pages 36 and 37.  There is then reference made by counsel for the applicant to that fact that the only two persons shown in photographs with injuries were the two accused.  Is that dealt with?  Before you answer, the fourth area identified by counsel for the applicant is the differences between witnesses in identifying in particular the leader of the attack that was made.  Was that dealt with by the judge?

MS ABRAHAM:   If I could deal with the question of the photographs first.  That was not explicitly dealt with.  When there was a request for redirections by defence counsel, ultimately, in my submission, for example in relation to Mr Butterworth, the complaint was not so much that matters were not put, but rather the depth in which matters were put.  In my submission, the nature of the photographs did not take the same prominence as, for example, other aspects or other criticisms that were made.

The evidence in relation to Tolmer and Bryson, are the two witnesses that I am sure your Honour is talking about, and the comparison between those witnesses and Mr Pham.  There is reference to Ms Tolmer’s evidence at page 31 of the application book which, in effect, sets out her relevant evidence on the topics.  That, of course, is to be added to later passages at page 38 of the application book at the bottom of the page.  The learned trial judge specifically made reference to her evidence there, and again in the redirections at page 49 going on to the top of page 50.  The trial judge explicitly related the fact that there is a conflict between Ms Tolmer’s evidence, Mr Bryson and Pham, and that clearly that had an effect on the reliability.  That, of course, had to be looked at against the fact that the jury had been reminded previously what that evidence was.

Whilst I make that submission, the one matter of significance that the Court of Appeal found ought to have been put clearer was the specific contrast between Mr Bryson and Mr Pham’s evidence, for although the topic was raised on a number of occasions - indeed, the last occasion being just before the jury retired - in relation to Mr Bryson’s evidence when he was telling the jury what that evidence was he did not go into the same degree of detail about that.  But the Court of Appeal concluded that in light of the addresses and general conduct of the case, given there was the specific reference to the topic of Bryson and Mr Pham, and the obvious consequences about that, that the jury could hardly have appreciated otherwise than that.  In my submission, those aspects are dealt with in varying degrees.

In my submission, when one is considering the directions in Domican, the question for the Court of Appeal was whether or not the obligations had been met.  In my submission, it is clear that this Court of Appeal did not regard the summing up as a model summing up, but, in my submission, that is not the end of the matter.  The court had to decide whether it was adequate in the circumstances.  They decided that it was.

This case does not, in my submission, have the impact that my friends are suggesting.  It does not send a message to other courts, for example, that the obligations are anything other than those imposed.  Quite to the contrary.  This court has set out - as in the court in Bint and Butterworth - set out what is the preferable course to take, as opposed to having the references interspersed between comments by the judge and summaries of the evidence and the like and, so, in my submission, this case, on the identification aspect, really is just an example of the application of the principles that already well established by Domican to the facts in this case and, with respect, no more.  In my submission, on that aspect, there is no question of special leave that arises on that.

If I might go back, just for a moment, to the question, very briefly, of the comment about the failure to give evidence?  There has been reference to a purported conflict in the State courts as being a basis upon which leave ought to be granted.  In my submission, it is not quite as simple as that.  The High Court, in Wessensteiner, did set out guidance for courts as to when comments may and may not be made.  In my submission, it is inappropriate and, indeed, the Court in Wessensteiner commented on, one cannot be more particular than that. 

The decisions my friend relies on - for example, the Queensland decisions that were cited - come from a different background.  In Queensland, prior to Weissensteiner, there was a decision in a case called Fellows which related to the giving of any direction or comment to the jury on an accused’s failure to give evidence.  It relates that to circumstantial evidence only, and some members of the Queensland court have considered that they would still be bound by that until that particular case, in Queensland, has been overruled.  That, in my submission, does not touch or affect this matter at all.

HAYNE J:   The facts in Weissensteiner were very odd: three people go on a boat, one comes back.  The one who comes back might be expected to know what happened to the other two.  If a Weissensteiner-type direction can be given in a case where the defence is, “I was not there.  The witnesses who say I was there are wrong”, is there any limit to the application of Weissensteiner?

MS ABRAHAM:   In my submission, it would depend on the particular circumstances of the particular case.  For example, in this case, there was an overwhelming body of other circumstantial evidence, which makes this case a good illustration of my argument.  The evidence was compelling, in my submission, that the two applicants would have returned to the hotel the next night to exact revenge, because the evidence clearly was that there had been an incident the first night, these two applicants were identified by Mr Pham, and a number of other witnesses, and their presence on the first night was not disputed.  They were members of a motor cycle club.  On the next night, there was an attack on the hotel by 20 or 30 people of the same motor cycle club and, so, here, when you have identification - - -

HAYNE J:   Just before you go on Ms Abraham, there are two applicants.  You are coming towards the end of 20 minutes.  If you require more time, you should let us know.  But for the moment we will simply let time run in the ordinary way but that should not inhibit you applying for more time.

MS ABRAHAM:   Thank you, your Honour.  Your Honours, in this particular case then, although there is identification evidence, that is, the evidence of Mr Pham for the second night, there was an abundance of other evidence, and compelling evidence that they were there.  Now, in those circumstances, if one then turns to the considerations in Weissensteiner as to when it is appropriate to give a direction, the circumstances, with respect, are met, because one is not looking at one piece of evidence alone.  I accept that there may well be a particular case where there is just one identification witness and, indeed, one very poor identification witness and it might well be, on the facts in that case, it is inappropriate on the guidelines in Weissensteiner, to give any direction or make any comment about the failure to give evidence.  But, what that does demonstrate ‑ ‑ ‑

HAYNE J:   Can I make plain my difficulty, Ms Abraham?  If this direction, read as a whole, is to be taken as an invitation to the jury to more readily accept the case against the accused for want of explanation, there would appear to me to be at least some room for debate about whether that direction was appropriate and, if appropriate, whether authorised by Weissensteiner.  If, however, taken as a whole, the direction does not amount to such an invitation to the jury, other considerations intrude.

MS ABRAHAM:   Your Honour, in this particular case, all that is said in the direction is the very basic, the uncontradicted evidence concept in the middle of a direction where there is repeated reference over and over again to the onus and burden or proof, and that there is no obligation on the accused to give evidence.  In my submission, when one is considering, at the end of the day, whether the Crown has proved its case, what the trial judge is doing is stating the basic fact of the uncontradicted evidence.  It is

not, in my submission, what has become known as a Weissensteiner direction.  It does not have those features to it.  It does not go that far.  In my submission, that is why, again, this would be an inappropriate vehicle to consider that particular question.

HAYNE J:   Now, your time has, as you see, expired.  Do you apply for more time?

MS ABRAHAM:   No, your Honours.  I have really concluded my submissions on that particular topic and those are my submissions.

HAYNE J:   Thank you, Ms Abraham.  Yes, Mrs Shaw.

MRS SHAW:   Your Honours, we say that his Honour Justice Cox in his summing up acknowledged, at page 80, that the passages referred to by your Honour Justice Hayne, were just summaries of evidence and were not comments by the trial judge with the authority of his office behind them.  We say that the flaw in the Crown’s argument is that it is not enough to isolate matters of significance because in a general summing up, the obligation of the trial judge is to be comprehensive.  What Domican requires is something extra in relation to identification evidence and that is the obligation set out at page 564 of Domican itself, that the judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on that evidence.

It is that step that was never taken by the judge in this case, and that is the complaint about the judge’s summing up and the approach of the Court of Criminal Appeal.  It failed to appreciate that it is not enough to isolate.  The judge must direct the jury to take them into account.  And in relation to the effect of the summing up, we have the question of talking points, according to our Court of Criminal Appeal, including evidence of observations, of time, of conflicting descriptions and the like, and we say that those matters should have been, or are bound to be, the subject of a direction.

I point out to your Honours that in this case, the specific complaint by the Crown at page 48, at the end of the summing up, was that the learned judge had not put the force of his authority behind the relevant features, in particular, in relation to the identification of Bint, and so that we say that the redirection by his Honour where he attempted to refer to some matters failed absolutely to refer to identification or the evidence in the context of the warning at all.  At page 49, when he did refer to Ms Tolmer and Mr Bryson, he did not even use the word “identification”.  He did not use the word “warning”.  He did not direct the jury that they were required to.  He used

the expression, “It is a matter for you to consider”.  And we say that that is contrary to what is required of Domican.

Your Honours, in relation to the Weissensteiner point, we say that it is plain that the High Court in Weissensteiner itself, at page 228, acknowledges that it does not apply in every case. And what the High Court says is it does not apply because:

Not every case calls for explanation or contradiction in the form of evidence from the accused.  There may be no facts peculiarly within the accused’s knowledge.

So the High Court, we say, implicitly in the judgment acknowledged, contrary to our Court of Appeal, that it did not apply in every case.  We say, your Honours, that it is plain that the real question is:  does it apply, in any event, after there is sufficient evidence for a finding of guilt, but it can never apply to the evaluation of a particular piece of evidence leading to a fact here, the identification evidence of Mr Pham.  If the Court pleases.

HAYNE J:   Yes, thank you, Mrs Shaw.  Mr Rice, is there anything you desire to add by way of reply?

MR RICE:   Very short, your Honour.  If the direction at the middle of page 28 is not a Weissensteiner direction, that is the direction that the absence of Mr Butterworth giving evidence ‑ in other words, “It can assist you to evaluate the evidence particular of Pham”, if that is not a Weissensteiner direction, then what is it and what is the authority for it?  We say that the word “evaluate” - - -

HAYNE J:   Is it any more than a comment by the judge on the fact that the accused did not give evidence?

MR RICE:    But there must be an expectation then, your Honour, that the jury will use that in some way, meaning in what way are they going to use it?

HAYNE J:   Is it permissible in South Australia for the trial judge to comment on the failure of the accused to give evidence?

MR RICE:   Yes.  The position here is the common law position but it is a question of how they are going to use it and, in our submission, they cannot use it to evaluate identification evidence because that stands and falls on its own weight.  If the Court pleases.

HAYNE J:   The Court will adjourn until 2.15 Canberra time; 1.45 Adelaide time.  We expect to be in a position to announce our decision on these applications at that time.

AT 1.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

HAYNE J:   These applications concern, in part, a particular application of the accepted principles recognised in Domican v The Queen (1992) 173 CLR 555. The other point which it is sought to agitate is said to concern the limits of the application of what was held by this Court in Weissensteiner v The Queen (1993) 178 CLR 217. While we are not to be taken as endorsing the charge given to the jury in this case, we are not persuaded that its unusual terms raise the latter point. In the event, however, we are not persuaded that either application enjoys sufficient prospects of success to warrant a grant of special leave. Accordingly, special leave is refused.

AT 2.16 PM THE MATTER WAS CONCLUDED