Cameron & Anor v The Queen

[1991] HCATrans 193

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl24 of 1990

B e t w e e n -

ALLAN BOWER CAMERON and MARK

MICHAEL SOLOMON

Applicants

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 6 AUGUST 1991, AT 12.22 PM

Copyright in-the High Court of Australia

Cameron 1 6/8/91

MR G. NICHOLSON, QC: If it please the Court, I appear in

this matter with my learned friend, MR B.W. CROSS.

(instructed by J.J. Cullen & Associates)

MR R.N. HOWIE, QC:  I appear with my learned friend, MR P.G.

BERMAN, for the respondent. (instructed by the

Solicitor for Public Prosecutions)

DAWSON J: Yes, Mr Nicholson.

MR NICHOLSON:  Your Honours, this is an application for both

extension of time and for special leave. The

circumstances concern the extension of time.

DAWSON J:  What is the time involved?

MR NICHOLSON:  Some months, Your Honours. The circumstances

are set out at paragraphs 19 to 25, at pages 6

and 7 of the application book in the affidavit of Mr Cullen. I can take the matter no further than what is set out in those paragraphs. In essence, there was a substantial delay within the workings

of the machinery and that that impeded the prompt

presentation of the application for special leave.

DAWSON J:  Perhaps if you go on to the merits and we will

reserve on that question.

MR NICHOLSON:  Certainly. Thank you, Your Honours. The

material in support of the application, as I say,

is set out in those paragraphs. The history and

substance factually are set out at paragraphs 5

to 10 of the same affidavit. They are comprised of

pages 2 and 3 in the application book. In essence,

the trial was one in which the conviction was to
turn, in whole, upon the acceptance or rejection of
alleged confessional material in respect of each of

the applicants.

DAWSON J:  What is the point of special importance which you

assert?

MR NICHOLSON:  The points of special importance are as to

the role of the trial judge in responding to a

question from the jury and that is the main factual

matter in this application.

DAWSON J: Why is that point of importance? The judge gave

a certain answer to a question which was said to

be, in the circumstances, possibly misleading. The

Court of Criminal Appeal considered that and said

it was not. What is important about that?

MR NICHOLSON:  If I may answer by completing the first

proposition that is put; they go together,

Your Honour. The role of the Court of Criminal

Appeal in deciding an appeal dealing.with questions

Cameron 2 6/8/91

from the jury is also in issue. If one looks at

the decision of the Court of Criminal Appeal, in

the presiding judge's reasons he concedes that the

answers to the question taken in vacuo would appear

to be misleading. He says that if you read that

which went before it then it would not be possible

to so construe the answer.

The dissenting judge, Justice Campbell, took a

view that the role of the Court of Criminal Appeal

was not to apply a lawyer's mind to the literal

correctness or falsity of the answer but rather to

look at the question which prompted it and to

rather construe whether there was in fact a risk of

miscarriage of justice.

The sequence of events was that the trial

judge had on several occasions - I think two or

three - directed the jury in terms that if they

rejected the confessional material then there was

no case; there would be an acquittal.

The question posed by the jury set out in the

application book was - perhaps I should be precise

about it. This was after a brief retirement:

Your Honour, did you say that if we believed

the unsigned Record of Interview was a

fabrication, that we must find the accused

innocent of all charges?

His Honour answered the question with a single word

"No".

It is true that His Honour did not use those

words but His Honour gave clear directions to that

effect. His Honour's answer was literally correct.

The effect of His Honour's answer was incorrect.

The question itself is very significant. It

clearly, by the fact that it is asked, indicated

the jury wished guidance upon that which he had

directed them earlier.

DAWSON J: It is a question of whether the effect of

His Honour's answer was to mislead the jury and

that is a question which was considered by the

Court of Criminal Appeal. That raises no questions

of law. It depends on the facts of the particular case, the particular direction, the context of the

particular answer. What are we do about it? Are

you suggesting we go through exactly the same

exercise as the Court of Criminal Appeal in the

hope that we should come to a different conclusion?

That is not - - -

MR NICHOLSON:  I may come to that position, Your Honour, but

it is not what I am starting at.

Cameron 3 6/8/91

DAWSON J: Very well.

MR NICHOLSON:  I may be reduced to that and I appreciate the

warmth with which it will be received but I do not

wish to start at that point. I wish to take

Your Honours to the role of the Court of Criminal

Appeal in looking at the question. You have the

presiding judge looking at the written word and

saying, "In it's totality it could only mean one

thing.", and that is one approach to the appeal.

You have a dissenting judge saying, "That is

not the approach proper for this court. We should

be looking at whether in fact there is a real risk

that the jury didn't understand earlier what

occurred, what was said to them, and that their

question is evidence of that and that albeit the

judge had not used those precise words and that his

answer was literally correct, albeit that be the

case, his answer to that question posed a risk of

prejudice and the proper approach for the Court of

Criminal Appeal is to safeguard against that risk

and not to read the questions literally but rather

to look at the effect and the risk."

The question, of course, not only posed a

problem indicating a lack of comprehension of the

directions given earlier, which was not cured by

further directions by a literal answer, it also

indicated in its content a mistake, an

apprehension, as to the burden and standard of

proof. There is nothing in the answer referring to

that at all but the question cried out for it.

The question itself indicates a lack of

comprehension. His Honour had, in fact, given them

direct. Directions to the case depended upon the

acceptance of the confessional material. If

Your Honours looked at that question and that answer Your Honours might think that it is

literally correct. He did not use those words.

But Your Honours might take the view that a jury

would well understand it to be a confirmation that

they could convict in the absence of the

confessional material.

DAWSON J: Except that they use the word "Record of

Interview" in the singular, and they speak of it as

an.unsigned record of interview and they appear to

have an understanding of - if one uses those terms

technically - what they were saying.

MR NICHOLSON:  Your Honour, one of the problems of the case

in that context is that throughout the summing up

His Honour the trial judge used the term "Records

of Interview" to refer to entries in a policeman's

notebook and an unsigned document. There is no

Cameron 6/8/91

distinction made by His Honour the trial judge with

the jury. When he summed up to them they were both

records of interview. I can take Your Honours to

specific examples of that. There are several I can

take you to.

In relation to the accused, the word "accused"

is, of course, singular or plural. There are

ambiguities inherent within the question. There

was a mistaken belief as to the standard and burden

of proof. There is a lack of precision in the
question itself as to it being a singular or

plural. His Honour having used the term in the

summing up "Records of Interview", it is not

specific as to which accused. The answer to it

could be viewed in those circumstances as a non-

drection where one was required. The answer to it

could be construed as literally correct but

factually misleading and be a misdirection.

I do not wish to retreat to the other position

at the moment, Your Honours. I wish to stay with

the role of the Court of Criminal Appeal in

reviewing those questions. Is it the role of the

Court of Criminal Appeal to take a lawyer's view

and read continuously the text of the summing up,

including the question and answer, and conclude

overall that taken as a whole the jury could not

have been misled, construed that way; or is it the

role of the Court of Criminal Appeal to look at

what happened, clear directions were given, a

question was asked which indicated in its content
confusion as to what had gone before and that
confusion was not remedied by a literally correct

answer?

DAWSON J:  Why cannot the accused ask for a further

direction?

MR NICHOLSON: At pages 68 to 72, from memory, of the

summing up there had been debate between the

counsel for the accused at the trial, the Crown

prosecutor and His Honour and during that debate

matters were ventilated and His Honour took his own

course after the debate. It was, in effect, what

his decision was to do, having heard the debate.

DAWSON J: That answer was suggested, as I understand it, by

Crown counsel. No doubt the submission could have

been put if counsel wished to put them.

MR NICHOLSON: With respect, Your Honour, I think that those

submissions - whilst it is correct to say nothing

further was put after the answer was given, there

had been considerable debate leading up to it being

given and the contrary was put. Defence counsel at

the trial stuck to the position that without the

Cameron 6/8/91

confessional material there was nothing and,

indeed, that was His Honour's position prior to the

question. And yet, the answer to the question is

either to be viewed as literally correct or as a

change in direction by His Honour at that point of

the trial. It followed debate.

DAWSON J:  His Honour did not intend it that way. So the

sole question is whether the jury would have taken

it that way.

MR NICHOLSON: Certainly.

DAWSON J: And what the Court of Criminal Appeal said was,

"Well, by itself it might be equivocal but having

regard to the clear directions which he otherwise

gave it could not have misled the jury".

MR NICHOLSON:  Your Honour, I do not want to retreat to that

argument, which I am trying to avoid. I want to

stay with the role of the Court of Criminal Appeal,

how it should approach answering that question.

There was a clear division on the bench in that

judgment in the Court of Criminal Appeal as to the

proper approach.

DAWSON J:  The majority did not say they were taking the

view of lawyers and that although the jury may not

be lawyers - let me rephrase that: that they were

not taking the view that the construction they put

on the words was a construction which would be

understood only to lawyers and not to a jury

comprising non-lawyers, were they?

MR NICHOLSON:	If I could take Your Honours to page 30 of the application book, to the last paragraph on that
page, I think Your Honour will perceive that the
dissenting judge - sorry, Justice Allen it was, I said Campbell, apologies - certainly perceived
himself as I perceived him to be enunciating a
different approach to the Court of Criminal Appeal
in viewing that question.

DAWSON J: Well, that was his view. It does not mean that

the majority consciously were adopting a different

approach or thought that they were. And if you

take what appears at 25, that is the gravamen of

it.:_

Taken completely out of the content -

et cetera.

MR NICHOLSON:  Yes, one can look at that and then add it to

what is, in fact, the conclusion of that paragraph

at the top of page 27, Your Honour, and the

emphasis there is the summing up as a whole, the

Cameron 6 6/8/91

context as a whole. The division to which I invite

Your Honours is that rather than look at the

summing up as a whole for that purpose, rather to

look at what is evinced by the question itself.

DAWSON J:  Now, that is a different question. You say

that - what, are you saying that the judge is not

entitled to look at the answer to the question in

the context of the summing up as a whole?

MR NICHOLSON: That is one factor that may do - in fact,

must do - but they must go further.

GAUDRON J:  What you are talking about is an anterior point,

are you not? That is, did this question betray

some confusion on the part of the jury? That is

not an answer which automatically suggests - well,

it is not a question which suggests an answer in

isolation from the summing up in any event. I

mean, one would not assume, if the summing up has

dealt with all the matters, that there was a	·
distinction.	One would not assume that the jury

was confused. Rather one might tend to assume, in

the light of the summing up, that it was aware of

the distinctions.

MR NICHOLSON:  If I could put it perhaps in stark relief. I

refer to page 23 of the summing up, first, about

point 6, His Honour's direction to the jury there:

If you are in doubt about whether or not these

admissions were made to the police, either in

the case of Cameron or Solomon, you must

acquit both accused.

A little further in at page 24, again referring to

the confessional material:

If you are not, or you have a doubt about this

evidence, then your decision must be one of

not guilty.

One would have thought that was very clear. If one

looks at the question:

Your Honour, did you say that if we believed

the unsigned Record of Interview was a

fabrication, that we must find the accused

innocent of all charges?

Answer:

No.

You can see the stark relief, I am sure,

Your Honours. It is literally correct that

His Honour had not used those words, .that the

Cameron 7 6/8/91

effect of what his directions were were, indeed, consistent with the answer yes. He had not used

those words. However, the question itself clearly,

by stark relief, indicates they simply did not

comprehend those two directions to which I took

Your Honours. The question then is, "What approach

should the Court of Criminal Appeal take? Should

it read, as a whole, the summing up and say, 'Well,

as a whole, taken together, we don't think there's

any risk of miscarriage', or should they look at the question itself as evidencing confusion that flowed before it, lack of comprehension, crying out

for redress." If so, should they look at the

effect of the question and the answer and consider

in those terms whether a risk followed or should

they be content with a literal approach?	I would
suggest to Your Honours there are disparate directions there and I am submitting to

Your Honours that that is one area which would

warrant special leave being considered by

Your Honours.	I would be contending for the
latter.

GAUDRON J:  Mr Nicholson, how many alleged confessional

statements were involved in this case?

MR NICHOLSON: There was alleged against the applicant

Cameron some comments which were taken down by a

policeman in a notebook and alleged against the

applicant Solomon that certain statements were made

followed by what might be described as an unsigned

record of interview. That comprised the

confessional material.

DAWSON J: Well, it is summarized at the bottom of page 22

and at the top of page 22A:

In the case of the accused Cameron there

is a fabrication of the oral confession by

Nimmo and Messenger and, as I say to a lesser

extent Henderson, and in the case of the

accused Solomon there is a fabrication of an

oral admissions said to be made to Openshaw in

the company of Detective Sergeant Bright and,

in addition, there is a fabricated typed

record of interview that he said in his

statement was handed to him just before he was

charged and he was asked to sign it -

Now, I refer to that because His Honour there

clearly distinguishes between fabricated oral

confessions and the fabricated typed record of

interview.

MR NICHOLSON:  If Your Honours refer to the summing up at

pages 29, 36, 51 and 57, Your Honours will find -

there the generic term used for confessional

Cameron 6/8/91

evidence "Records of Interview" - and page 24.

There is a further reference at page 70.

The question posed by the jury was in the

singular as to a record of interview and non-
specific as to accused being singular or plural.

My submission is the question itself comprises evidence of non-comprehension of what preceded it

in the summing up and it is non-specific as to

precisely what it is to which the jury were drawing

His Honour's attention.

There is, perhaps because the matter has not

arisen in such a clear way in the past, an absence of reported authority on this specific question in

the context specifically of questions from the

jury, themselves, which evidence confusion or

misunderstanding within their body and the level to

which assistance is to be offered. There is the

authority of Adair referred to.

GAUDRON J: But one view is that it does not evidence

confusion at all, that it evidences a complete

understanding of the evidence and the different

statements or the different confessional statements

that were in issue. And I have just gone to

page 51 - I could find nothing on pages 29 and 36
and page 51 and although there is a reference on

page 51 in summing up to the "records of

interview", it is in a context where a distinction

is made:

and if not a record of interview why wasn't

the notebook shown to him to get his

concurrence with what was in the notebook.

MR NICHOLSON:  The reference at page 29 is the second line

of the last paragraph.

GAUDRON J: Yes, thank you.

MR NICHOLSON:  The reference at page 36 is in the second-

last line of the second paragraph.

MR HOWIE:	That is Openshaw .....
MR NICHOLSON:	Be that as it may, the plural is used.

Certainly there is reference there to Mr Openshaw but- the plural is used in the second-last line.

GAUDRON J: Yes, thank you.

MR NICHOLSON: At page 51, it is in the ninth line of the

second paragraph on the page; at page 57, it is in

the second line from the top of the page. And the

plural term is again repeated by His Honour during

the debate on the very question at about point 4 on

Cameron 9 6/8/91

page 70, indicating his view and his intention

which was accepted by the Court of Criminal Appeal

that the case did indeed turn on the confessional

material and there is nothing else it would go on.

Your Honours, dealing with the question of the

plurals, if I could now refer back to the question

itself and try and explain clearly what I say is

the material evinced by that question. A

question - ignoring for a moment the response and
seeking to deal only with the question, the

question seeks a direction - well, there are two

views: the first, which is, I suggest to you,

artificial, "Did His Honour use certain words?".

And that is, in my respectful submission, the only
way you can construe His Honour's answer, "He

didn't use those words".

If the question was a request for guidance as to in what circumstances they could convict in the

absence of confessional material, whether it was

open to do so or not, did he restrict them in doing

so? That is the thrust of that question, seeking a

direction, was it open to them to convict in the

absence of the confessional material? Did he tell

them they could not convict in the absence of the

confessional material? His answer was no.

Forgetting the answer for the moment, did he

in fact give that direction to the jury? At

page 23, point 6:

If you are in doubt about whether or not these

admissions were made to the police, either in

the case of Cameron or Solomon, you must
acquit both accused.

Clearly, he had given a direction that if they came to the view they doubted the admissions were made, they must acquit Cameron and Solomon.

DAWSON J: But clearly he did in his directions and you say

that in giving the answer no he was giving a

contrary direction?

MR NICHOLSON: With respect, I say a little more than that.

DAWSON J:  You probably do but that is the nub of what you

are saying. And you say that the Court of Criminal

Appeal was wrong in saying that that would not

mislead the jury?

MR NICHOLSON:	I do.
DAWSON J:	And you say that they were wrong in saying that taking that answer in the context of the whole of
the charge the jury would not be misled. We are

Cameron 10 6/8/91

just going over the same ground again and again and
again. It involves no point of law, no question

other than a conclusion which was open to the Court

of Criminal Appeal; nothing that could be regarded

as having any special importance.

MR NICHOLSON:  Your Honour, I listen to what you say and I

do not want to be repetitive or argumentative, however, I have stressed the importance of the

content of the question itself and stressed that

there were two ways to look at it and the different

judges in the Court of Criminal Appeal have
proceeded on different paths: one, taking it

contextually and being literally correct, causing no damage; the other, looking at the ambiguities

and possible risk evidenced by the content of the

question.

DAWSON J: But we have been over that ground.

MR NICHOLSON:  Yes, that is the first point. I am happy to

leave it. The second is, unfortunately, that area

that I was hoping to avoid but it will be

mercifully brief and that is that - I appreciate

fully that we do not sit as a Court of Criminal

Appeal in this Court but rather as a court of

criminal review restricted by policy considerations
as to making or formulating law and reviewing

procedural matters. The answering of questions in

this context is a procedural matter of very

considerable importance in this State.	We would be
benefited by guidance on the issue.

DAWSON J:	What is the guidance you suggest we give?
MR NICHOLSON:	The extent to which, if a question evidences misunderstanding there is a positive obligation to
remove that misunderstanding.
DAWSON J:	No one has ever doubted that, have they?
MR NICHOLSON: There is no authority on it, Your Honour.
DAWSON J:	I would not have thought it called for any,

really, but you develop the point.

MR NICHOLSON:  The courts would benefit by it. The only

authority cited of assistance in the Court of

Cr~minal Appeal was Adair and I would have thought

that that authority rather supported my argument

where the content of the question itself - although the answer in Adair was literally correct: "He was

an accessory before the fact?---Yes." The answer

to the question itself evidenced some extraneous or irrelevant material in the jury's mind and required correction. And, of course, the results of the

Cameron 11 6/8/91

substituted verdict do not affect us here on other

grounds.

The last point, Your Honours, is simply this, that in the end result, if Your Honours have an

uneasy feeling that by virtue of the debate we are

having here that man was denied justice,

Your Honours are still a repository of that justice in this country. Admittedly, with a large scale of

discretion as to when you will or will not

entertain that type of application, but

nevertheless it is the third and last that I make.

Thank you, Your Honours.

DAWSON J: Thank you, Mr Nicholson. We need not trouble

you, Mr Howie.

The conclusion of the Court of Criminal Appeal

in this matter turned on the particular

circumstances of the case. No point of general

importance is involved nor is there any other

aspect of the case which would warrant the grant of

special leave. Special leave is refused.

MR HOWIE: If the Court pleases.

AT 12.55 PM THE MATTER WAS ADJOURNED SINE DIE

Cameron 12 6/8/91