Black v The Queen

[1993] HCATrans 124

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl21 of 1992

B e t w e e n -

MICHAEL JOHN BLACK

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

Black 1 20/5/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 MAY 1993, AT 9.58 AM

Copyright in the High Court of Australia
MR T.A. GAME: If the Court pleases, I appear for the

applicant, together with my learned friend,

MR S.J. ODGERS. (instructed by T.A. Murphy, Acting

Director, Legal Aid Commission (New South Wales))

MR R.O. BLANCH, QC:  May it please the Court, I appear for

the Crown, with my learned friend,

MR F.D.L. HOLLES. (instructed by S.E. O'Connor,

Solicitor to Director of Public Prosecutions (New

South Wales)).

MR GAME:  If the Court pleases, this application for special

leave arises out of a decision of the Court of

Criminal Appeal in February 1992 dismissing appeals

against convictions following two trials, one

relating to a fire which occurred in September

1986, and another relating to a fire which occurred

in November 1987.

There is one common point between the two

trials which concerns the refusal of the trial

judge in both cases to order separate trials. It

will be our submission that in each case separate

trials should have been ordered, that in each case

the trial judge erred in principle in the approach

taken to the ordering of separate trials.

MASON CJ:  But have you not got to show that the failure to

order separate trials resulted in a miscarriage of

justice?

MR GAME:  Your Honour, we would also submit that the first

question is whether or not error has been

established and, if error has been established, the

question is then one of the application of the proviso. So that our submission would be that

section 6 of the Criminal Appeal Act demands, in

circumstances such as this, an approach which seeks

to identify whether there has been a defect in the trial such as to amount to an error of law, and in

our submission these are errors of law.

MASON CJ: But does not the decision of the Court in Darby

establish that it is for you to show that there has

been a miscarriage of justice at the trial,

resulting from the failure to order separate

trials?

MR GAME:  The decision in Darby really only dealt with the

question of separate trials - that is not the

central aspect of the decision of the Court in

Darby. In my submission, traditionally, in

relation to separate trials, the question has been

treated as if it were a question whether or not a

miscarriage of justice has occurred. That seems to

Black 2 20/5/93

follow from a line of cases going back to

Grondkowski.

But in our submission, that approach is

erroneous and it is erroneous because, just as in,
for example, Marie, erroneous admission of
evidence, results in the court then turning to the

proviso, once a conclusion has been made that

evidence has been erroneously received, so too in

Dietrich, an erroneous decision to refusing an adjournment, then the question becomes one of

application of the proviso.

DAWSON J:	You are not suggesting that this was not the exercise of a discretion by the trial judge?
MR GAME:	No, Your Honour, I am not, but, Your Honour, in my

submission, the discretionary principles have been

wrongly identified in the cases and one of the

problem has been that there has been no

consequences of the approach that the Court of

elucidation of what the principles are.

Now, there has been elucidation of the

principles at single judge level in the supreme

court and, in our submission, those principles are

clearly erroneous, and it follows in this way. In

Darby, this Court observed that if evidence was

different then that would normally lead to a

separate trial, and in this Court in Darby the

Court also approved a-Canadian case of Guimond,

which refers to the question of whether or not

evidence is significantly stronger in one.

In New South Wales there are now a series of cases that require, as a pre-condition of separate

trials, firstly, that the evidence be significantly

different and one case significantly weaker than

the other. So that, for example, in the first

trial here, this application for a separate trial

once the impermissible prejudice has been	foundered on that problem, but in our submission,
identified, which can be identified in the first
case -

DAWSON J: Just go back to it - you say here the weaker case

was which?

MR GAME:  Actually, there was no weaker case. The case

against the co-accused was overwhelming. But the

prejudice that arose in this case arose from the

evidence against the co-accused and the way in

which she conducted her case. Because in the first

case she made admissions - she was charged as an
accessory after - implicating the accused, and then

during the conduct of the trial she did nothing to

Black 3 20/5/93

refute the admissions, both that she made to the

police identifying him as the offender, and saying

that she was frightened of him, and then she

conducted no defence at all.

DAWSON J: Well, a judge, in exercising his discretion,

could not be expected to know that, could he?

MR GAME:  No, Your Honour, he could not be expected to know

that, but his ruling was based on the fact that
this was not a case of strong versus weak, and then

he said, "But at this stage, therefore, I will not

grant separate trials". But circumstances changed,

such -

DAWSON J: That is a case like Demirok, is it not, where the

original exercise in discretion was not wrongful

but, as it turned out, it was unfair to have joint

trials, and the conviction was quashed.

MR GAME:  In a sense, it is like Demirok except that,

Your Honour, we would submit that the trial judge

has a continuing obligation, in relation to

separate trials, to review the position during the
course of the trial, but he said, "At this stage, I
will not grant separate trials". In our
submission, the very greatest prejudice that could

possibly arise, occurred.

DAWSON J: Then, it really is a question, as the

Chief Justice put to you, as to whether there was a

miscarriage of justice in this case, is it not?

MR GAME:  No, Your Honour, if one focuses on the obligation

on the trial judge to prevent a defect in the

trial, the question of separate trials having been

raised with him. So that, in our submission, the

obligation is a continuing one, so that still - - -

DAWSON J:  So that you say somewhere along the line in the

trial, a point was reached where he should have

realized now that failure to order separate trials

was going to result in a miscarriage?

MR GAME:  Yes, even if it came to a question of saying that

it was a question of establishing a miscarriage of

justice, as first identified in section 6, we would

say that an approach to that question requires

identification of what the defect was. Now, all

the Court of Criminal Appeal said in this case was,

"It was a strong case".

In our submission, that is really no more than

the Court of Criminal Appeal saying, "He is so
obviously guilty that the defect does not matter".

Because the Court of the Criminal Appeal has never

identified what the defect is, and once one

Black 4 20/5/93

strength of the Crown case is not a consideration, but once one identifies the defect, the strength of the Crown case falls away as a feature that would say, "Well, no miscarriage of justice has occurred"

identifies the defect, then the strength of the

because one could not - - -

DAWSON J:  You say the defects here were twofold. First of

all, there was an admission made by Mrs Spittles

which was prejudicial to the accused. It was only

admissible against her, but you say it must have

had an effect against him. And, secondly, that she

did not defend her case strongly, and that emerged

in the course of the proceedings.

MR GAME:  Yes, she did not defend the case at all but,

moreover, not only that, she said that she was - in

her unsworn statement, all she said was, "I am not

very bold", whatever that means. She did not run

duress, but she said to the police that she was frightened of the accused, and she did not deny

those admissions or that statement. And she made

admissions to a number of people, a number of

witnesses, that the accused lit the fire.	And the
case against her was one of false alibi.

Now, presented with those circumstances, it is

highly unlikely, on the facts, that her conduct is

untrue. It is highly unlikely because it is

against her interests in a very profound sense. So

the jury are presented with the Crown case against
the accused and conduct of the co-accused, and a

case against the co-accused which this accused

cannot meet in any way, because he cannot

cross-examine the hearsay corning in through the

other witnesses, he cannot cross-examine the

co-accused because she makes an unsworn statement.

So it is worse than as if she pleaded guilty

in front of the jury. It is worse because it

becomes explicit what it is that she is saying

about her co-accused, and her original position

of false alibi is exposed.

So, our submission in relation to the first

case is that the trial judge erred in the approach
that he took to the question at the commencement of
the trial by, in effect, refusing a separate trial
on the basis that the case against the accused was
a strong case. That is to say, as a feature which
prevented him considering the question further.

Then, we say, that the trial judge should have, during the course of the trial, reviewed the

position. And we say the Court of Criminal Appeal

erred in the approach which it took to the question

Black 20/5/93

and that, by not exposing the defect, it

effectively did no more than say, "We believe that

the accused was guilty of the offence because it

was a strong case".

Now, if one then turns to the facts of the

second case, application was made in that case at

the commencement of the trial and at the conclusion

of the Crown case for a separate trial. Now, in

this case, although there was some evidence of

association, there was no case against the accused

without an uncorroborated confession made to the

police in custody - not corroborated, and disputed.

In her statement to the police, the co-accused

said that she did not light the fire but that this

applicant did, and she told the police that she was scared of him. During the course of her trial, she did not dispute those admissions to the police.

And during the course of the trial, one of the

co-accused raised - - -

DAWSON J:  When you say she did not dispute, she did not

cross-examine - - -

MR GAME:	No, she did not cross-examine on the - - -
DAWSON J:	She was not represented?
MR GAME:	She was represented, but she did not cross-examine

on the making or the truth of those admissions, and

she did not raise it in her case, any dispute as to

that statement.

Also in the Crown case, one of the co-accuseds raised "good character" so that, inferentially, the jury would have known that this accused was not in

a position to raise "good character".

In relation to the separate trial application,

as I said, it was refused at the commencement, it

was made further at the conclusion of the Crown

case, and no ruling was given on it, so that the

trial judge did not even consider the question.

And in relation to identification of error, it is

quite clear, and if I could take the Court to

application book, page 69, it is quite clear that

the trial judge misconstrued the principles upon

which separate trial questions are to be

determined. He said:

Where the prosecution authorities elect to indict people jointly there is a presumption

that that is a proper exercise of the

prosecutor's power, unless it can be shown

that there are particular circumstances.

Black 6 20/5/93

And a little bit further, he said:

The Crown alleges the contrary; that there was

a commonality of ..... evidence. That being the

case -

so that he simply relied on the say so of the

Crown. In fact, there was a commonality of

witnesses, there was no great commonality of
evidence. That is to say, some witnesses would say
they saw Mrs Spittles doing some things, and then

they would say they saw Mr Black doing some things.

But there was no actual commonality of evidence,

apart from the fact that he was living in the house

at the time of the - - -

DAWSON J: Well, you would have to prove, basically, the

same facts if you had separate trials in each

trial, would you not?

MR GAME:	I am sorry, Your Honour, I just half-missed that.
DAWSON J:	If you had separate trials, you would have to

prove basically the same set of facts at each

trial, would you not? In that sense, there is a

commonality.

MR GAME: You would, yes, Your Honour, I accept that. If

one -

MASON CJ: Can I ask you this question, Mr Game. Apart from

the alleged admission, what was the evidence that

implicated the applicant in relation to the second

crime?

MR GAME: In the second case? Well, there was evidence that

he was living at the house, there was some - - -

MASON CJ: Yes, evidence that the belongings were taken out?

MR GAME:	belongings, apart, I think, from a set of Yes, but they appear to have been Mrs Spittles'
dumb-bells. There was some evidence that he was seen asleep at the Colby's the following morning,
and there was some evidence from a Mrs Ryan that
the applicant's brother was seen waving him away from the house in the morning.

I think there was some evidence from a

Brenda Watson that his clothing - I am not sure whether it was his clothing, but certainly that

certain clothing was not at the house. That may

have been only - application book, bottom of page

98:

Didn't see any of Wendy's clothing or

Michael Black's.

Black 7 20/5/93

So, it would appear there was some evidence to

suggest that there was absence of his clothing.

With the uncorroborated ad.mission, there was a

circumstantial case against him; without it, there

was no case against him.

I was saying a short time ago that the Court

of Criminal Appeal - - -

DAWSON J:  In the second case, what was the evidence against

Mrs Spittles that you complain of as being

prejudicial to the accused?

MR GAME: Well, the principal evidence is her ad.mission to

Detective Torning, that she did not light the fire,

that, "It was Michael, I keep telling you" -

I'm scared of him -

coupled together with the fact that she did not

dispute either the making of that ad.mission or its

truth, either in cross-examination of that

detective or in the conduct of her case.

MASON CJ:  I can see that the reception of that evidence may

have played a part, possibly, in the mind of the
jury when they came to evaluate the disputed

confession made by the applicant.

MR GAME:  Yes, well, that is a point that I made in the

summary of submissions, and we do make that point.

We also make the point, of course, in relation to the uncorroborated confessions, that no Carr direction was given in respect of that, and that

was the subject of complaint, both to the trial

judge and to the Court of Criminal Appeal.

The Court of Criminal Appeal, in disposing of

that point, said that, in light of the law as it

was at that time, such directions were not

necessary, in effect. But such directions were

necessary because this was a case that required a

Carr direction in line with the decision - - -

DAWSON J: Well, the trial judge did tell the jury that an

allegation by a policeman of an oral confession is

a very difficult thing to refute, did he not?

MR GAME:  Your Honour, all he did was, he repeated a

submission from defence counsel to that effect, he

did not - - -

DAWSON J: Give his own imprimatur.

MR GAME:  - give his own weight to it, he simply repeats.

He said, "Mr Lennon made that submission to you",

Black 8 20/5/93

but he did not give any warning in relation to the
police evidence.

I was referring the Court to the line of

decisions in New South Wales which have sought to
establish the principles that are applied in

relation to separate trials. If I could hand the

Court an unreported decision which, on the front

sheet, really shows what those principles are, and

which we say are erroneous.

DEANE J:  Mr Game, what do you say to what

Chief Justice Gleeson said, on page 151 of the appeal book, looking at line 26?

MR GAME:  We say that the court is entertaining an appeal

against a refusal by Judge Gibson.

DEANE J: Well, I was directing your attention more to the

second sentence, to what His Honour says, that the

argument that the court was asked to uphold was:

That, in the events that occurred, by the reason of the failure to order separate

trials, there has been a miscarriage of

justice.

MR GAME:  Your Honour, that is a misconstruction of the

argument which was put to the court. If one

examines the written submissions, it is clear that

the ground of appeal was that the trial judge

erroneously failed to order separate trials, and it

is clear that that is the submission that was put.

I have only examined the written submissions but it

is perfectly clear that that is a reconstruction of

the ground by the Court of Criminal Appeal.

DEANE J: Well, the correctness of that statement by

Chief Justice Gleeson is the question of principle

which would primarily be involved in the appeal.

MR GAME:  Yes.

DEANE J: While I am interrupting you, can I ask you this:

what is the procedure in New South Wales at present

for seeking separate trials?

MR GAME:  In the district court, Part 53 of the district

court rules requires filing of a notice of motion

and an affidavit in relation to pre-trial issues.

DEANE J:	And it comes on at the stage before the trial?
MR GAME:	Yes. In the first case here, two applications

were made for separate trials, prior to the trial.

Black 9 20/5/93

DEANE J:  And there is a procedure for appeal by leave from

the decision?

MR GAME:  Section SF of the Criminal Appeal Act would allow

such an appeal if the Court of Criminal Appeal

determined that that was an interlocutory matter,

although there have been restrictive

interpretations of that.

DEANE J: So, if your submission is correct, nobody would

ever appeal, because you would then have the

situation that they could go to trial, get the

advantage of the trial, if they lost, then go to
the Court of Criminal Appeal on the basis that the
proviso had to apply if the Court of Appeal

disagreed with the trial judge's ruling, or the

primary judge's ruling.

MR GAME:  Your Honour, one could put exactly the converse

argument, which is that the trial judge could

simply say, "I do not care about separate trials"

and then, if the trial proceeded and the Court of

Criminal Appeal said, "Well, there has been no

miscarriage of justice" - - -

DEANE J: Well, if the trial judge said that, I would have

thought you would have a waterproof case for an
appeal, with the result that you would not have a
trial conducted under the cloud that you are

advocating, regardless of miscarriage of justice.

MR GAME: But, Your Honour, I am not advocating a cloud, I

am advocating identification of the defect that

occurred in the trial.

DEANE J: Is that not what you are saying? That, if an

accused thinks the trial judge's order for refusing
a separate trial is mistaken, he or she can then
sit back on the basis that the trial will take

place even though no miscarriage of justice has

resulted directly from that order.	He has a good
ground of appeal unless the case comes within the

proviso.

MR GAME:  Your Honour, I would submit that that is an

inevitable result of the application of section 6

of the Criminal Appeal Act, but by the same token,

I would submit that the proposition that

Your Honour has posed raises the very problem, because a different consequence would flow if the

appellant appealed under section SF than if they

appealed at the conclusion of the trial, and that

cannot be correct.

DEANE J:  No, because what Chief Justice Gleeson is saying

is, if the trial goes ahead, the relevant question

Black 10 20/5/93

becomes whether there has been a miscarriage of

justice.

MR GAME:  Your Honour, the proposition I am putting is

really that, in a sense, this is no different than

what arises in relation to a judge's ruling in
relation to severance of counts, or it is no
different than in relation to the wrongful

rejection of evidence, or refusal of an

adjournment, or any such rulings of those kinds,

which are all questions of law, but they have

elements of discretion in them; that in fact, in

relation to separate trial questions, this is

really the only area where this particular approach

is taken to the problem. It has got a long

history, going back to Grondkowski and, in my

submission, it stands out as entirely different

than the way in which other problems are dealt

with.

One of the reasons is an assumption that

things may occur during the course of the trial
which change the circumstances and, of course, that
is the case if things may improve from the
accused's point of view, but it has no application
in relation to cases such as this where both
accuseds' situations materially deteriorate during
the course of the trial.

I should say that my fall-back position is

that, in any event, on a proper identification of
the principles in each of these cases, a

miscarriage of justice has been identified.

DAWSON J: Really, what you are saying is, you do not attack

the exercise of .the discretion in the first

instance.

MR GAME:  Your Honour, I do attack the exercise of the

discretion in the first instance on this basis.

DAWSON J: In the first trial and at the time the

application for separate trials was made?

MR GAME: In the first trial, I do, yes. Yes, because in

the first trial, the trial judge purported to apply

Domican's case, which is a precursor of that case

of Middis. Now, in Domican's case - if I could

just hand the Court copies of that.

Domican's case is a precursor of Middis but the principles are a little bit more difficult to

identify because a separate trial was ordered, but

they can be seen at page 27 of the judgment

because at 27.6 the trial judge went on to consider

whether or not one was substantially weaker than

the other, and at 27.5:

Black 11 20/5/93

The real issue, it seems to me, is whether

that prejudice is avoidable in this case

without injury to the interests of the

administration of justice.

Now, our submission is, that once one identifies

impermissible risk of prejudice, then there are no

other considerations to be determined, so that the
lines of authority are erroneous in two basic

respects.

Firstly, by having this first requirement of

one significantly strongerthan the other, and

evidence - weaker case made stronger, plus

different parts of evidence, but this further

requirement, that even if you identify
impermissible prejudice, that you then have to go

on and weigh that against the interests of the

administration of justice. This is, in fact - this

same line of reasoning is applied in Middis, at

page 7, and that is in the unreported case I handed

up of Middas.

So our submission is that what happened in the

first case was that the trial judge was applying these principles, but they were wrong principles

and what has happened is, these principles have
been picked up from Darby and Guimond which were
simply examples of cases in which separate trials

would be ordered, and that what has happened is, in

effect, the codification of discretion, and the

erroneous codification of discretion by making

cases where the identification of circumstances in

which separate trial will be ordered into a

pre-condition of its ordering.

That is what has happened. If one looks at

page 2 of the application book, that is what the

trial judge has done in the first case. On that

principle, he would not order a separate trial at

the conclusion of the Crown case because the case remained stronger and the evidence was not	significantly different in the respect identified
in those cases. So, yes, we do say there is a
clear error.

DAWSON J: Then you say, "During the course of the trial,

circumstances emerged which called for an exercise

of the discretion to order fair trials at that

point", and then you say, "In any event, as thin.gs

turned out, there was a miscarriage of justice", as

they put it.

MR GAME:  Yes, but also including that argument that I put

about how the court should approach section 6 of

the Criminal Appeal Act. That is, in summary, the

Black 12 20/5/93

submissions that we make in relation to separate

trials.

With respect to the Carr direction, no Carr

direction was given in the second trial. As I have

said, it was a disputed confession, made in

custody, not corroborated, no Carr direction was

given, one was sought at the trial, the Court of

Criminal Appeal said that, in view of the law

applicable at the time, the directions were

adequate. But, no directions were given and the

law at the time, as I said, was Carr's case.

So, in the second case, we have both the prejudice flowing from the joint trial, plus the

Carr direction, and the effect that the first had in relation to the -

MASON CJ:	What direction was sought at the trial?
MR GAME:	A direction in accordance with Justice Brennan's
judgment in Carr. Those pages are not included in
the application book, but it is clear that - if the
Court requires them, I have got those pages of the
transcript that directions were sought in
accordance with Justice Brennan's judgment in Carr
and they were not given. So, that is the position
in relation to the Carr direction.

Now, the final question sought to be raised on

this application concerns the exhortation	given to
the jury in relation to the first trial.	Now, this
is an exhortation which appears in the
New South Wales bench book.	It appears at page 152

of the application book. It appears, as I said, in

a bench book, it has been approved in a number of

New South Wales Court of Criminal Appeal decisions,

unreported decisions. In our submission, such an

exhortation should not be given.

MASON CJ: What is wrong with it?

MR GAME:  Your Honour, firstly, it refers, at line 30, to

the:

considerable public inconvenience and expense

if a jury cannot agree and it is most

unfortunate indeed if such a failure to agree

is due to some unwillingness on the part of

one or -

other. Further down:

It is very desirable that you should come to a conclusion one way or the other.

Black 13 20/5/93

Now, those directions were disapproved by the

English Court of Criminal Appeal in Reg v Watson
(1988) 1 COB page 690, and the reasons that we
would put as to why an exhortation should not be

given appear at page 700 of the decision of the Court of Criminal Appeal in Watson's case. The

decision is at page 690, the passage is at page

700.       We would, with respect, adopt what is said by

the court at page 700, particularly at between C

and D:

The mere exhortation to listen to the contrary

view seems unlikely to have had such a

dramatic effect. The suggestion of expense

and inconvenience is doubtless a much more

potent incentive to agree.

In this case, the exhortation was given after the

jury had been deliberating for only three hours.

Now, the jury were not told of their right, under

section 56, that if they disagreed that they would

be discharged. Nor were they told in clear

terms, and we would submit that they should have

been told in clear terms, that they were under an

obligation to hold to a view which was honestly

held. What they were told was that there was a

certain a.mount of give and take and adjustment:

within the scope of that oath.

That, in our submission, is something that a jury

would have a great deal of difficulty in

understanding. So, they should have been told that if they had a view that they honestly held and they could not depart from it, then they should hold to

it, and they should have been told of their right

to disagree.

That is the submission that we make in

relation to exhortations. It is a problem of

importance both in New South Wales - this is a

problem of continuing application in

New South Wales and in the rest of Australia.

Watson has not been disapproved.

DAWSON J:  Watson, of course, was in the context of majority

verdict. That is the distinction the Court of

Appeal draws.

MR GAME:  Yes, but, Your Honour, the cases seem to say that

it should be distinguished entirely from majority

verdict directions and it was said, I think by

Lord Justice Widgery in a case, that there may have

been some justification for it at an earlier time.

But, in our submission, at the end of the day, it

is too strong, even in the context of unanimous

Black 14 20/5/93

verdict directions. It should not be given in

these terms. It is an important -

MASON CJ:  Can you tell me, what is the origin of this

statement? You say it is in the handbook.

MR GAME:  It is in the bench book. I know that because I

saw a transcript a while ago where a judge said, "I

will read from the bench book", and he read this

exactly, and it is still being read.

MASON CJ: Yes, but can you tell us what the origin of it

is?

MR GAME:	Walhein seems to be the - - -
MASON CJ:	You think it comes from Walhein, which is the

instruction disapproved by the Court of Criminal

Appeal in England?

MR GAME:  Yes.

DEANE J: That is rather unlikely, surely

MASON CJ: They update the bench book, do they not?

DEANE J:  - - - that somebody saw a statement disapproved

by the English courts and took it as a New South

Wales model .

MR GAME:  No, but Your Honour, it must have been in the

bench book for a long time.

DEANE J:  I thought you were saying that its origin was

Walhein's case?

MR GAME:  Walhein is an older case, so it must have been for

a long time. The origin is not Watson. Watson is

the case I have been reading, Walhein is the

precursor. So, it has come from Walhein. The

reasons why we would submit it should not be given
are fairly apparent.	•

DEANE J: It is rather amusing, actually. If you look at

the first paragraph beginning on page 697 in

Watson. The court says:

In the result the direction, more often than not embellished or adapted according to circumstances, has continued to be used.

Nothing has until recently happened to

discourage judges from using it. Indeed in

the specimen directions which were issued in

1982 (but revised and reissued in August 1987)

to all judges and recorders by the Judicial

Studies Board, which were, I must confess,

Black 15 20/5/93

expressly approved by myself, appears the

Walhein direction including the passage.

MR GAME: Well, the model direction proposed appears at

page 700, which leaves out any reference to the

matters to which I have previously referred,

although it does contain that, what I would submit,

is unfortunate - this is at F to G on page 700:

There must necessarily be discussion, argument

and give and take within the scope of your
oath.

It really requires a different form of words to make clear to a jury what it is that they are

required to do in relation to that, in my

submission.

DAWSON J:  I must say, for my part, I do not think juries

are so sensitive as to be unduly swayed by

references to inconvenience and expense. It is

after all just telling the truth. What they are

being exhorted to do is not to be rigid.

MR GAME:  Your Honour, in this case, the jury returned their

verdict within some 30 minutes and then, in our

submission, one could not exclude the prospect that

this had an influence upon their verdict.	In any
event -

DAWSON J: Well, I will not take up time, but it seems to me

that any exhortation runs the danger of putting the

pressure on the jury but a mere reference to

expense or inconvenience really is not the crucial

thing.

MR GAME:  It may not be. I have focused very much on that

because of Watson's case, but my submission really

looks at - I seek to really draw the Court's

attention to the whole effect of that exhortation.

DAWSON J: But it is likely to have a greater effect where

there are majority verdicts - or may, anyway - than

where there are not, is it not?

MR GAME:  That is really a question about whether or not

number 3 is hanging out, as opposed to number 12 or

number -

DAWSON J: It is only a matter of numbers?

MR GAME:  Yes, it is only a matter of numbers, it is not

really a matter of anything else. It is just a

question of which particular person on the jury,
assuming that two have made up their minds and

ten - sorry, two have not made up their minds.

Black 16 20/5/93

DAWSON J:	I would not say one should be less ready to give exhortations where there are majority verdicts,
perhaps than otherwise.

MR GAME: Possibly. Those are my submissions, if the Court

pleases.

MASON CJ:  Thank you, Mr Game. Yes, Mr Blanch.

MR BLANCH: Just as to that last matter, of course, in

Watson's case at page 696, the Court of Appeal

specifically refers to the change to majority

verdicts, and that being one matter for

consideration in determining where the position

should be in England and that is, no doubt, where

the matter was picked up by the Chief Justice in

his judgment. It is a submission that we would

make that the exhortation as it is traditionally

given and given in this case, is perfectly

appropriate, does not place any undue pressure on

juries, that it is unrealistic to expect or to

suspect that a simple exhortation based on those

matters would have any influence on the jury at

all.

DEANE J: There is a lot of force in that, except when you

look at this exhortation, the second paragraph,

that is surely open to some doubt as being
desirable in that it is almost calculated to make a

juror who is holding out in accordance with his own

views against conviction feel guilty and could, if

he was not an intelligent juror, lead to the.

thought that he was doing a disservice to the

accused by not taking account of this great public

interest and joining in the verdict of guilty.

Well now, that surely is not the ideal situation to

bring .about.

MR BLANCH: Well, Your Honour, if it were interpreted by a

juror as an invitation to give away an honest view and not to be true to his oath, then that would be

true but, in our submission, he - - -

DEANE J: But just let us take a hypothetical case. Assume,

contrary to what happens, that the jury come back
and the foreman says, "Eleven of us are agreed but
the fellow down the end in the front row is holding

out for an acquittal", and the judge then gave this

direction in the second paragraph to him, that he

is causing considerable hardship to everybody, that

it is a bad thing for the administration of

justice, I do not think you would be here really,

defending that situation.

MR BLANCH:  If it happened to one juror publicly,

Your Honour.

Black 17 20/5/93

DEANE J: Yes, but now it may well be that that is the fact

and before the jury come back the others are saying

to him, "Oh, look what you are doing, you are going

to create a new trial" and so on - "Come on, give

in, eleven of us think he is guilty", and back they

come and the judge says that.

MR BLANCH:  Yes, Your Honour, it is - - -

DEANE J: - - - not ideal.

MR BLANCH:  It is an argument in favour of majority

verdicts. But the answer that I would really give

to Your Honour in respect - - -

DEANE J: Well, it may be an argument against majority

verdicts, but that - - -

MR BLANCH:	The answer that I would make to that is this, that this is the direction, it is a traditional
direction that is given in these cases, and there
still are a percentage of disagreements amongst
juries.

DAWSON J: It is given sparingly, is it not? For my part -

I do not see many juries these days, but I would

never ..... accept under the most extreme

circumstances because however it is cast, it is

putting pressure on the jury. It is designed to do

that.

MR BLANCH:  Yes, it is designed to put pressure on the jury.

That is exactly so, Your Honour. But I would not take away my friend's point that this is the

standard exhortation that is given in

New South Wales. It depends how Your Honour

defines "extreme case". It is given after the jury

has been deliberating for a number of hours.

MASON CJ: Or when the jury sends a communication to the

trial judge indicating difficulty.

MR BLANCH: Yes, Your Honour. That is not necessarily all

that common, but it is common enough, if I can put

it that way, for my friend to be able to

legitimately say it happens in the New South Wales'

courts from time to time, but only in those

circumstances. So, I grant him the point to a

limited extent, and I would not seek to take that

away from him.

But, the history of exhortations, of course,

is against a background of the development of the

history of the criminal law where the jury was

locked up until they did reach a verdict. So that

the idea of locking them away without food and water until such stage as they came out with a

Black 18 20/5/93

verdict was considerably ameliorated by an

exhortation such as this. My submission to this

Court about that simply is that - - -

DAWSON J:  I do not know if that - I mean, saying that you

cannot coerce a jury into ..... verdict except to a

limited extent.

MR BLANCH: Well, it is a question of a limitation, and I

take Justice Deane's point to be that the second
paragraph of this exhortation may be it is a
question as to whether there is a risk of that
placing improper pressure on a juror to give way an

honestly held view.

MASON CJ: Yes, because he does not preserve and emphasize

the need for the retention of the expression of an

honestly held view, as the English direction does.

MR BLANCH:  The model direction, Your Honour.

MASON CJ:  Yes. The model direction. If you compare the

model direction at 700 with this, it does seem to

me there is a very distinct difference between

them, and that difference lies in the emphasis
given to the retention of the individual juror's

point of view. It preserves the integrity of his individual judgement. The direction in this case

does not.

MR BLANCH:  Your Honour, except that I would put that the

first paragraph of the exhortation does:

No one of you should be forced to the oath you

took but in order to return a collective

verdict, a verdict of you all, there must

necessarily be discussion and argument, a

certain amount of give and take and adjustment

within the scope of that oath.

That is precisely drawing the jury's attention to

the nature of the oath they have taken, and then

simply saying that it is within that context it is
a matter of looking at these other things and

saying, "Well it is important" and that, in our

submission, is appropriate to preserve that so that

it removes any real possibility that jurors would

be giving way and returning verdicts simply because

they wanted to not inconvenience the public.

It is, in our submission, not correct to

assess jurors as not understanding that,

particularly when they are told at the very

beginning of that exhortation that they have taken an oath and they should not be forced to that oath.

It is an interpretation of the intelligence and

Black 19 20/5/93

weakness of character of juries that I think is not

realistic.

I do not think I can add to that. Of course,

Chief Justice Gleeson has pointed out that the
English position has changed and has changed

matter of policy in relation to that, that if the exhortation changed, and changed to the English

because of the majority verdict provisions in

position, then it would create converse pressure

for a majority verdict situation to come about in

New South Wales.

The primary submission we make in respect of

this application is that the question that the

Court of Criminal Appeal was considering was a

question as to whether there had been a miscarriage

of justice in the course of these trials. There

had been an application for separate trials, but

the trials had by that stage occurred, and when the

Court of Criminal Appeal was examining the
question, that was the question that they were

examining. Our submission is that, in other words, that what Chief Justice Gleeson said at page 151 of

the application book was correct.

MASON CJ: Is there authority in this Court for that

proposition?

MR BLANCH:  Your Honour, I take Darby to mean that.

MASON CJ: Well now, can you point to the passage in Darby?

MR BLANCH:  No, Your Honour, I cannot. I was looking for it

before.

MASON CJ: Because I thought that Darby said that, but when

I looked at Darby I could not find a precise

sentence to that effect.

MR BLANCH:	No, Your Honour. With respect, I think that is right because I was looking for the same thing.
The reason that I thought Darby said that was
because by necessary implication from Darby's case
that the thrust of what the Court is looking at in
these cases is whether there has been a miscarriage of justice and you are not focusing on the
artificialities of whether a particular application
was correctly made or not.  In our submission, the
same reasoning applies here.

It would have been open, in this case, for

there to have been an appeal against an application

for separate trials. It would have been open to

bring the matter back to the

Court of Criminal Ap~eal at that stage. That was

Black 20 20/5/93

not done. It would, of course, have been open to

ask for a discharge of the jury during the course
of the trial, which was not done, if during the

course of the trial evidence came out which raised

the question as to whether there was such

unfairness in the process that a fair trial could

not occur.

There is no doubt about the fact that in this

case there was prejudicial evidence that arose in

respect of the co-accused that would or could
possibly have an impact on the minds of the jury in

the sense that the statements by the co-accused

about the complicity of this applicant, which were

not admissible against him, were clearly matters

that had to be considered very carefully by the
trial judge in hearing the separate trial

application and deciding that issue, and they were
also matters that were of major significance to the

Court of Criminal Appeal in determining whether the

failure to order separate trials, or the way the

trial had turned out, created an injustice to this

applicant. There is no denying the fact that those

questions arose at the beginning of the trial, and

that they were raised during the trial, and that at

the end of the day they arose for the consideration

of the Court of Criminal Appeal.

However, our submission is that there is no

error that can be demonstrated in the consideration

of this matter by the Court of Criminal Appeal.

The court looked at the strength of the evidence

which existed against the accused. The court

looked at the warnings that the judge gave and came

to the conclusion that there was clear and strong

warnings given about what evidence was admissible

and what evidence was not admissible, and the

court, having weighed those matters up, came to the

conclusion that no miscarriage had occurred.

Now, in those circumstances, it is our

submission that it is not a matter for special

leave because the court did look at the appropriate
matters. The court did weigh those things up. It

is evident that her statements that he had lit the

fires was going to be prejudicial. The court knew

that.

DAWSON J: This Court has dealt with joint trials recently

in a couple of decisions, has it not - well,

relatively recently, in the last ten years anyway?

MR BLANCH: Yes, Your Honour.

DAWSON J: There was a South Australian case.

Black 21 20/5/93

MR BLANCH:  No, Your Honour, I cannot think of the case

where the precise matter has arisen.

DAWSON J:  Maybe not joint trials, but separate trials for separate offences.

But, really, in the end, it comes down to a

question of whether you think a direction is likely

to be heeded to a sufficient extent to overcome

what is an inevitable prejudice anyway.

MR BLANCH:  Indeed, that is right, Your Honour.

DAWSON J: That is really the end question.

MR BLANCH:  Yes, but our submission is that the

Court of Criminal Appeal was well and truly aware
of that. The Court of Criminal Appeal considered

that and the Court of Criminal Appeal came to a

conclusion about that on the facts. Minds may

differ about that. It is really a question of
evaluation, but at the end of the day it cannot be

shown that the Court of Criminal Appeal has not

performed its function properly and therefore no

point of special leave arises from this ground

here.

'

I might just point Your Honours to one aspect of this that is of some particular relevance which

is the fact that this prejudicial material has to be looked at in conjunction with the alleged oral

admission in respect of the second matter, and that

was a matter that was particularly in issue. The

warnings that were given by the trial judge appear

at page 113 of the application book, really from

line 17 onwards in the summing up, together with

something that he said at page 86, more towards the

beginning of his summing up where he said:

It is a wise exercise, however, when

evaluating evidence to look to see if it finds

any substantial support from some other

source. If it is challenged and if it is

standing alone, you approach it with some more
caution.

That, together with what he said specifically about the confession, is where there is a warning to the jury about that.

But, as we submit to the Court, those matters

were all well and truly before the

Court of Criminal Appeal and it cannot be shown

that there was any error there.

MASON CJ:  Yes, Mr Game.

Black 22 20/5/93

MR GAME:  If the Court pleases, there is, as far as we are

aware, no case in which this Court has considered

separate trials. This Court has, of course,
considered severance of counts in De Jesus and in

Sutton, but the submission that we put to this

Court is that the principles that should be applied

are the principles that are identified in Sutton

and De Jesus and that those principles are not

applied in relation to separate trials.	We would
rely very heavily on those cases.	We would say

that the same general principles should apply and

they are not being applied. Had they been applied

in these cases then, inevitably, separate trials

would have been ordered.

I have De Jesus, 61 ALJR 1, on my list of

authorities. Firstly at page 3, in the

Chief Justice's judgment, a quotation from the judgment of Justice Brennan in Sutton's case which

we would rely upon - that is in column 1 at E -

and, secondly, we would rely on the passage that

appears in Justice Brennan's judgment in De Jesus

at page 7, column 2 at E. We would submit those

are the principles that should be applied in

relation to separate trials, and we rely heavily on

the fact that not only has there been no

elucidation of those principles in relation to

separate trials by this Court, but there has been

no elucidation by the Court of Criminal Appeal, and

naturally it is an important matter.

DEANE J: But is there anything that says clearly that where

a question of separate trials in a case of joinder

of counts is involved, the relevant question is

whether an order for separate trials should have

been made, as distinct from whether there has been

a miscarriage of justice by reason of the failure

to make that order?

MR GAME: There is no case that says that, Your Honour, but

again

DEANE J: This Court has acted on leave applications on the

basis that the question was that stated by

Chief Justice Gleeson, but I cannot recall it being argued.

MR GAME: There was a recent leave application in Franklin

where it was argued on that assumption, but we
would say that that assumption is unfounded and

there is no decision of this Court which has dealt

with the proposition that we put in relation to the

approach that should be taken by the

Court of Criminal Appeal and, as I have said

already, Darby certainly does not say that.	We
would rely on the way in which this Court has

approached other analogous defects in the process,

Black 23 20/5/93

such as wrongful admission of evidence, a la Marie,

refusal to discharge a jury, refusal to grant an adjournment, severance of counts, and those have

all been treated as proviso questions.	So we would
say that that approach should be taken.

MASON CJ: There is a passage in the joint judgment of

Justice Deane and myself in this case of De Jesus

which does seem to support the view taken by

Chief Justice Gleeson. It appears at page 6 and it

is in the paragraph that commences half-way down in

the first column. Now, underlying that, the views

expressed there, there appears to be a strong

assumption that one is concerned with resulting

miscarriage.

MR GAME:  Yes, Your Honour, but at the end of the day there

is a very difficult question that arises in

relation to how - there are three placita upon

which an appeal can succeed under section 6. One

is, unsafe and unsatisfactory; two, wrong decision

of law; three, for any other reason, miscarriage of

justice, provided that, and then comes the proviso.

We would say we do not have to get to 3, we go

straight to 2, and this is a problem which in, as
far as I am aware, no case has this precise problem
been addressed. In this Court's decision in

Dietrich there are some discussions of the problems of miscarriage of justice and proviso - - -

DAWSON J:  The difficulty with that is that the first two

limbs of that section assume a miscarriage of

justice. I mean, it is not only the third

paragraph that refers to miscarriage of justice,

but any other miscarriage of justice, and when

there is an exercise of discretion you cannot

assume a miscarriage of justice because it may turn

out in light of later events it was the right

exercise for this question. Or, alternatively, as

in Demirok, although the discretion was rightly

exercised at the time, it turns out that there was

a miscarriage of justice nevertheless.

MR GAME:  Your Honour, that would, in our submission,

produce an anomalous situation, because if one

poses the question from the point of view of

identifying a miscarriage of justice in every case,

then one would never come to a consideration of the

proviso.

DEANE J: Yes, one would. It might not be substantial.

MR GAME:  If there is a miscarriage of justice, in my

submission, it would necessarily be that

substantiality of it is not really the ultimate

.determinate of the question.

Black	20/5/93
DEANE J: But would not the decision in cases such as

McKinney's case where, putting aside what Dietrich

has done - but there, am I not right, the question

was seen, not as whether an adjournment should have

been granted where the predominant view in this

Court was that it should have been, but whether any

miscarriage of justice had flown from the refusal
to grant an adjournment, where the predominant view

was contrary to the accused?

MR GAME:  Your Honour, in your own judgment in

Dietrich's case you posed the question entirely in

terms of, firstly, identifying an error in the

trial judge for having refused the adjournment, and

then you considered the question entirely in the

context of application of the proviso.

DEANE J: That was because I took a particular view of the

significance of forcing somebody to trial without

proper legal representation.	I do not think -
well, whatever it be.

MR GAME:  Your Honour, at the end of the day, we would

submit that the question of what the question to

determine by the Court of Criminal Appeal is, is

itself an important question and even if that

question may ultimately be determined adversely to
us, we would submit that that question in itself is

of sufficient importance for there to be a grant of

special leave. But we also rely on the other

circumstances which I have developed in relation to

the separate trial issue as themselves supporting
an application for special leave. If the Court

pleases.

MASON CJ:  Yes. The Court will stand this matter down until

2.00 pm and give its decision in the application

then.

AT 11.07 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.00 PM:

MASON CJ: The applicant seeks special leave to appeal in

order to challenge the convictions on several

grounds. The first is that Judge Gibson was in

error in refusing to order separate trials.

~--_Notwithstanding the applicant's submissions to the

contrary, in order to challenge the conviction

successfully on this ground, an appellant must show

Black 25 20/5/93

that any error in failing to direct separate trials

resulted in a miscarriage of justice. The

Court of Criminal Appeal was correct in approaching

the matter on that basis and we are not persuaded that the Court of Criminal Appeal was in error in

concluding that no case of miscarriage of justice

on that ground was made out.

The second ground urged by the applicant is

that the trial judge failed to direct the jury in

conformity with Carr v Reg in relation to the

applicant's disputed admission to the police that

he lit the fire at Penrith. As no such direction
was sought at the trial, it would not be

appropriate, in the circumstances of this case, to

grant special leave to appeal on this point. There

will, however, be a grant of special leave to

appeal limited to the trial judge's direction to

the jury with respect to the importance of reaching

a verdict.

AT 2.01 PM THE MATTER WAS ADJOURNED SINE DIE

UPON RESUMING AT 2.03 PM:

MR GAME: If the Court pleases, could I raise a matter in

relation to the grant of special leave in Black?

MASON CJ: Yes.

MR GAME:  In relation to the Carr direction, that was a

matter that arose in the second trial and a

specific redirection was sought and a direction was

sought in accordance with the judgment of

Justice Brennan in Carr's case, and I drew the

Court's attention to that this morning, so such a
direction was sought.	I apologize if there has

been any misunderstanding in relation to that, but

it is clear that a redirection was sought.

DEANE J:	And it is clear you drew our attention to it.
MR GAME:	I also said that I had the pages, if the Court

required it, so that in relation to the second - the Carr point arose in Judge Collin's trial and

redirection was sought in accordance with

Justice Brennan's judgment in Carr's case and it

was not given, and in a Court of Criminal Appeal

that ground was disposed of upon the basis that

directions were not required in accordance with the

authorities as they existed at the time. So the

Black 26 20/5/93

Court appears to have misunderstood the effect of

Carr's case as it related to this case.

So, we would submit that we have made out our

position all the way along the line through the

process, so that we would submit that the matter

has been correctly raised with the Court at the

various stages.

MASON CJ:  You can have grant of special leave on that point

as well, Mr Game. That seems to overcome the

problem, and it seems the best way of overcoming

it.

MR GAME:  And I am sorry to raise a further question. The

Court did not specifically refuse special leave in relation to the separate trial point on the second

case. Am I to take it that that is refused in

relation to both cases?

MASON CJ: Yes, both cases.

MR GAME: If the Court pleases.

AT 2.05 PM THE MATTER WAS ADJOURNED SINE DIE

Black 27 20/5/93