Brown v The Queen
[2021] HCATrans 29
[2021] HCATrans 029
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M69 of 2020
B e t w e e n -
JARED SAMUEL BROWN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
BELL J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 12 FEBRUARY 2021, AT 12.49 PM
Copyright in the High Court of Australia
MR T.A. GAME, SC with MS S. PALANIAPPAN appears for the applicant. (instructed by The Law Practice)
MS A.M. MITCHELMORE, SC with MR D.W.L. RENTON appears for the respondent. (instructed by Director of Public Prosecutions (Cth))
BELL J: Yes, thank you, Mr Game.
MR GAME: Thank you, your Honour. If the Court pleases, there is an extension of time application which is not opposed.
BELL J: Yes. Yes, you have that, Mr Game.
MR GAME: Thank you, your Honour. Your Honours, I will come to the direction which we complain about in a moment. But plainly enough, this was a trial in which the accused was convicted of importation and he raised one issue and one issue only, which was the issue of duress.
BELL J: Yes.
MR GAME: In respect of which he carried an evidentiary onus which was clearly satisfied, and the judge was satisfied of that, and he left the matter to the jury. Plainly enough, the accusatorial principles apply, whether or not he gave evidence, but realistically the only question in this case is whether or not his evidence raised a reasonable doubt, however one wants to put that.
BELL J: Yes.
MR GAME: I am going to take your Honours to a couple of passages that precede the impugned passage in a moment. But if you look at pages 15 to 17 of the directions given on duress and then the top of 18 his Honour says he:
pleaded not guilty –
Then at line 12 he says the jury are obliged to accept principles of law put to them. At the bottom of the page, over to the next page, the presumption of innocence is referred to. The accused’s evidence is referred to at page 27 and outlined, and then at page 54 we see a comment about witnesses. It is just a comment about witnesses generally, at the top of the page. It is not specific to the accused, and it does not necessarily couch the position of the accused in any particular way, but that is a general direction about witnesses.
Then we come to pages 63 and following, and that is on the second day of the summing‑up. Within one hour the jury had been sent out to deliberate. So if one looks at the top of page 64, his Honour says that none of the elements of the offence are challenged, the question is whether or not he had successfully raised the – described as the defence of duress.
Now, page 65, we do come to the directions that we complain about. Although we focus on some particular words there would really be no call for any of these directions in a case like this. But I will just take your Honours through them and what we say about them. First of all, we see the words:
In this case, the accused man chose to give evidence.
Now, that might be said in his favour, but actually it is turned against him quite shortly, and he is the only one that chooses to give evidence, but he is actually - in a case like this he really had no choice. He really had to get in the witness box, otherwise there was no question that the evidentiary onus would not have been satisfied. The next line refers to:
every accused person has the right to remain silent in court.
Now, as one knows from the common law and Azzopardi and the like, and the recent decision of this Court in GHF, that comes with the proposition that in the accusatorial system nothing adverse flows from that fact. We come to the next line:
In choosing to give evidence, he swore to tell the truth and submitted himself to cross‑examination, which is the way that lawyers test the witness’ credibility and truthfulness.
Now, the swearing is the thing that is focused on, so we have choosing to give evidence and swearing to tell the truth, but in the very next line:
Bear in mind that when assessing his evidence, that a guilty person –
Now, that is not a comment about anybody, that is a comment about this case:
might make a decision to try and tough out cross‑examination –
That is bringing up the notion of an antecedent decision to get in the witness box in the hope that it would be more likely to be believed. So what is being put to the jury is the taking of a punt on giving the evidence to get himself out of it, even though he is guilty. The next line says:
If he takes the risk of giving evidence, and if he dodges cross‑examination.
That means not dodges giving evidence at all, that means in cross‑examination, if he successfully dodges, that is to say, leaves a favourable impression, he still might be guilty, that is to say, getting away with it. Then it is contrasted with:
On the other hand –
So that bit about dodging cross‑examination means successfully dodging it. If he is successfully dodging it, then there is no way of telling whether or not he is telling the truth or whether he is dodging it or not, so that this actually becomes a warning about his evidence.
BELL J: Mr Game, can I just interrupt you to raise this? This direction, which as you point out, need not have been given, does appear to have been a standard direction given in criminal trials in Victoria.
MR GAME: True enough, your Honour, but in our submission it has always been wrong and deeply wrong, and much worse than the directions given in a case like Robinson - much worse. There is a reason for that, and whether or not it was always given really – I should add this, your Honour. It may have been given in Victoria. As you know there is legislation that says you cannot give this direction now, but this is a Commonwealth trial in which a jury – this is a case about the common law in respect of giving evidence. Victoria is a now an Evidence Act State but it is actually the common law that is informing this, and whether or not this was given for many years does not alter the fact that it is deeply wrong, and deeply wrong in a readily demonstrable way.
KEANE J: Not so deeply and demonstrably wrong that counsel appearing for the accused at the trial made any objection to it at all. No doubt for the good reason that this was standard practice and no one thought that a direction in these terms prejudiced your client’s prospects of an acquittal.
MR GAME: Your Honour, there is a very good reason for that because this direction has been given in Victoria for over 20 years. It has never been correct. So how could you be expected to object when there are other cases, which have been referred to in the submissions, that approve such a direction. If he had objected he would have got nowhere, and in the Court of Criminal Appeal this thing was dismissed out of hand with a refusal of leave. Nobody has looked closely at this direction.
BELL J: Does it follow from acceptance of your submission, Mr Game, that every person convicted in Victoria following a trial at which this direction has been given without objection has had a trial that was relevantly unfair and constituted a miscarriage of justice?
MR GAME: Yes, your Honour, but it would have to be determined in the individual case, but this would never be a proviso point in any case where an accused gave evidence that was material.
BELL J: I am not talking about a proviso point. What I am raising with you is that ordinarily when a court comes to perceive that the law as it has previously been understood and applied is incorrect it does not open the way to every person whose trial was conducted in accordance with the previous understanding of the law having a right to come to the court and have their conviction set aside.
MR GAME: I accept that, your Honour, but I am not arguing those cases and whether there are other cases, in my submission, is immaterial to this current question.
KEANE J: Well, except this, Mr Game. Putting aside all questions of proviso, this may be one of those rare cases where the interests of the due administration of justice positively point against the grant of special leave. When one looks at the matters that are summarised at paragraphs 7 and 8 at pages 213 and 214 being the matters that – or at least among the matters that the Court of Appeal relied upon in coming to the view that they were satisfied themselves beyond reasonable doubt of your client’s guilt, this appears to be an overwhelming case against your client.
The extension of time that he sought to bring his appeal in Victoria was refused because there was an unsatisfactory explanation of the delay and their Honours go on to say that they were satisfied beyond reasonable doubt that your client was guilty. If one looks at the question as being - really the first question so far as the due administration of justice is concerned as to whether their Honours were arguably wrong in refusing an extension, these are matters that weigh powerfully against you, do they not?
MR GAME: Your Honour, can I say this first. There was a hung jury at the first trial. This was a retrial, and clearly enough there was sufficient evidence to go to the jury on the issue and that hung jury really, in my submission, speaks large as to the fact that it was a matter for the jury to assess his evidence. Can I say this? What I wanted to say about these directions is to show just how deeply wrong these directions are, and I had not yet actually finished what I wanted to say about that.
Your Honour, yes, he is out of time but as I say this was a second trial and if I am correct about this he has had a direction that strikes at the very way in which his evidence is assessed, in such a way that this amounts to a warning against the accused person. It amounts to the warning because you would not know whether or not he had done that or not. So you are throwing away ordinary assessment of witnesses’ propositions.
But it is kind of even worse than that, and it is worse than that because of this. What is being put in the jury’s mind is him making a decision so the plea of not guilty is a false plea of not guilty, deciding to give evidence is perverting the course of justice, it is false swearing, every word he says in his evidence is false – that is what the jury are being asked to consider in this case. That is far worse than any of the other cases, and if it has been overlooked in Victoria, so be it.
But if one looks at the position from the perspective of the common law in Australia, a Commonwealth trial, these directions are deeply and fundamentally wrong and they are indefensible, in my submission. That can be readily established because this brings into the consideration something entirely extraneous.
The entirely extraneous thing is that this – and you cannot tell whether or not he is lying or not. The extraneous thing is his interest to the point that he has engaged in a thoroughgoing perversion of the course of justice and that is what these – and everything is held against him, including the swearing to give evidence, including the decision to give evidence. That is deeply wrong.
BELL J: Mr Game, you might be putting it a little high. There is a certain similarity between a direction of this character and the conventional directions given when a person raises their good character at a trial where the court explains the positive use that can be made of that evidence but adds the corrective that, of course, guilty persons always have a first occasion when – notwithstanding their past good character – they commit an offence. If one accepts that this direction is undesirable because it has the possibility to be confusing – or at least not assist the jury – it might be a bit high to suggest that it is positively telling the jury that the accused has lied in the evidence that he has given.
MR GAME: I said it is leaving for their consideration that as a factor and a factor which they will not be able to determine just by assessing his evidence. The judge goes on to say you should consider both of those comments. That is a direction. So they have to consider the fact that he has made this – that he may have made this decision. He may have made this decision and he may have got away with it. That is what is means when it says “dodged cross‑examination”. That is a warning and that is a warning
against the accused – that he is a suspect witness, for this reason. In my submission, there is no getting away from it.
BELL J: I understand the submission, Mr Game.
MR GAME: In terms of special leave factors, our submission is – first of all, the interests of this particular case – he had a non‑parole – there has been a Crown appeal – his non‑parole period was increased from seven to 15 years. That Crown appeal depends on, obviously enough, a valid conviction and ordinarily a conviction appeal will precede a sentence appeal. In my submission, the case was summarily dealt with and inappropriately so by the Court of Criminal Appeal. It raises important questions of principle throughout the Commonwealth, under the Evidence Act and at common law.
BELL J: Can I just take that aspect up with you? As I understand it, this was a bespoke direction given in Victoria and not in any other jurisdiction, and Victoria has now done away with it. So the point of general principle is what?
MR GAME: Well, your Honour, the point of general principle is that there has to be coherence between directions about the position of the accused, whether or not they give evidence, and this direction is actually worse than the direction that is given insignificantly. So, if the accused does not go into evidence – so there is a coherence question there that does need to be addressed. The Commonwealth in this case is seeking to defend these directions. They are saying there is nothing wrong with these directions, your Honour.
BELL J: But they are directions that are not going to be given in the future having regard to the provisions of the Jury Directions Act and the practice in the other jurisdictions.
MR GAME: Well, that may be so, but it does not alter the fact that in this – that what one sees here is a quite critical question about how one deals with a witness giving evidence – anyway, I think I have run out of my time, your Honour.
BELL J: Thank you, Mr Game. We do not need to hear from you, Ms Mitchelmore.
MS MITCHELMORE: If the Court pleases.
BELL J: In our opinion, there are insufficient prospects that an appeal would succeed were special leave to appeal to be granted, nor do the interests of the administration of justice favour the grant of leave that is sought. Special leave to appeal is refused.
The Court will adjourn briefly in order to set up the video connection for the next application.
AT 1.08 PM THE MATTER WAS CONCLUDED