Chase v The Queen

[1992] HCATrans 45

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S123 of 1990

B e t w e e n -

THOMAS ALAN CHASE

Applicant·

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Chase 1 13/2/92

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1992, AT 9.55 AM

Copyright in the High Court of Australia

MR M.F. ADAMS, OC: If Your Honours please, I appear with my

learned friend, MR P. BYRNE, for the applicant.

(instructed by Arden Associates)

MR M.S. WEINBERG, QC: If the Court pleases, I appear,

together with my learned friend, MR T.L. BUDDIN, on
behalf of the respondent. (instructed by the

Director of Public Prosecutions (Commonwealth))

MR ADAMS:  Your Honours, the only way in which this can be a

case justifying special leave is if this Court is

persuaded that the language adopted by the learned

trial judge in dealing with the evidence was really

such as to, in effect, tell the jury that they
should or could disregard the statement made by the

accused as evidentiary material which could be

relied on to contradict critical questions of the

Crown case. We would respectfully submit if that

be so or if there be a substantial risk that that
be so, there is such a falling short in the

requirements of a fair trial that special leave

would be justified in granting the appeal.

TOOHEY J:  That may not be quite the way in which it ought

to be put, Mr Adams. It may be that the question

does not arise unless you could persuade us that

the view taken by the Court of Criminal Appeal of

the language used by the trial judge was a view

that simply could not have been held. Is that not

the starting point before the question of special

leave arises?

MR ADAMS: Certainly, I must take up that burden and I had

intended that to be implicit in my opening

observations. Your Honours, the Court of Criminal

Appeal adopted what we would reluctantly concede is

a possible view of the summing up, fortified by the

failure by both counsel to seek any corrections,

although the Court will have perhaps observed that

after the first of the - if I may say so with the

greatest of respect to the trial judge - egregious

error of asserting that the appellant had made no

statement concerning Fanning was before an

adjournment, following which His Honour asked

whether either counsel had anything they wished to

say.

Fortified, as I say, by the attitude of

counsel, Their Honours move from what we would

submit was a barely possible construction of the

summing up, taken as a whole - we accept that we

must necessarily take it as a whole - to saying,

"Well, counsel was of the view that there was no

difficulty and hence the jury would not have been,

at the end of the day, left in any confusion."

Now, we submit that that is quite a wrong way to

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deal with a question of this kind. This is not a

question of the feel of a trial. This is a simple

question:  "What does the language used by the

trial judge reasonably convey to the attentive and

reasonably intelligent listener, ie, this jury?",

and not any assistance is taken by reflecting that

counsel, who may have had a whole lot of
considerations on their mind, the fact that counsel

did not seek any correction of these matters.

There is no doubt - and the Court of Criminal

Appeal accepted that there were fundamental errors

in the summing up, that is, misstatements of what

the accused had said, and assertions which were

quite wrong, for example, as we have set out. He

isolated the relevant evidence of Fanning, that is

the accomplice, and then as he went through that

witness and say, "Well, there is nothing to

contradict it" or, "There is no evidence which you

can use to contradict that." That is more than

merely one oversight that the jury might have

dismissed.

We submit that taking the summing up as a

whole, accepting those parts which, as a technical

matter, were unobjectionable, but taking the

summing up as a whole, there was at least a very

substantial risk that the jury would be misled and the Court of Criminal Appeal, in declining to give effect to the errors, that is, saying, "Well, those

parts which are unobjectionable, for example, the

opening discussion of what is evidence: evidence
comprises the witnesses' and the statement of the

accused", relying on that at the very beginning of

the summing up, then, on the jury realizing that

the judge had made an obvious error in saying that

the accused had made no statement - although that

appears somewhat ambiguously in the summing up -

and then at the end saying, "Well, he read the
statement, anyway", and counsel did not object, we

say, with respect, this was to isolate those

particular parts in the summing up and commit the

very error of which counsel was accused - that is,
counsel on the appeal was accused - namely, of

taking pieces out of the summing up, subjecting

them to unwarranted minute examination and coming

up with a technical error.

BRENNAN J:  Mr Adams, that is a very powerful argument, if I

might say so, with respect, to address to a Court

of Criminal Appeal but here, where you have to show

something special, it seems to me - and correct me

if I am wrong - that you would, if you were granted

special leave to appeal, deliver your argument in

two parts. The first part would be that on a fair

construction of the summing up as a whole, the

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learned trial judge misdirected the jury in the

following respects on questions fact.

MR ADAMS:	Yes, Your Honour.
BRENNAN J:	And the second stage would be to say, because of those misdirections, there ought to be a retrial?
MR ADAMS:	With respect, I said, yes, but I think

Your Honour said "misdirections as to questions of fact".

BRENNAN J: That is right.

MR ADAMS:  No, with respect, they were not - some were

questions of fact and some were quest ns of law.

The question of law was, "To what ext(~ ,.t can you

use the statement to contradict the sworn

evidence?" That is a matter of law upon which the

jury must necessarily have been instructed by, and

follow, His Honour's directions. That, with

respect, is a question of law which we isolate as

an error.

BRENNAN J: Is there any doubt as to the principle

applicable to that proposition?

MR ADAMS:  No, Your Honour, but the difficulty is this:

because of appeals - not only this Court but the

Court of Criminal Appeal, we submit - over a long

period, relating to the way in which the defence
case must be put and, in particular, that it must
be put fully and fairly; by and large, the

statement must be put in full, and the formula

which His Honour used that points out that the

statement was material they were entitled to use

and compare it to the sworn evidence which they

accept to be true. I do not wish to say this - I

think I must say it firmly but, if I may say, with

unfeigned respect for the learned trial judge, this is doing directions to a jury by numbers and what	the Court of Criminal Appeal has done is, really,
to encourage that process, that is, to encourage
the use of a formula in the hope that the use of
that formula will correct other errors that are a
part of the directions to the jury so that one can
avoid grappling with the essential problem which is
"What is the real case here?" For example, the edge of any relevance in this case, with the possible exception of one issue which was not
itself isolated but, rather, the approach applied
to the whole of the way in which the defence case was enunciated before the jury in a general way.

We submit that the Court of Criminal Appeal

gave far too much weight to counsels' - I suppose

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it is implicit from what I have said - failings at

the trial. They should have themselves exercised the responsibility of assessing what this summing

up was and considered it as a whole. So when we

come back to the question that Your Honour put to

me, when it would come to argument, we would

isolate, first of all, those misstatements of fact,

misstatements of fact in the sense of giving a

history of what occurred at the trial and,

secondly, we would isolate those observations of

law which told the jury how they could use the
defence case and weigh it up against the

prosecution case. That is the way in which we

would seek to - - -

BRENNAN J:  It does not seem to be an attractive area for

argument in this Court in the sense of raising

something which was fundamental to the

administration of criminal law or an important

question for determination that requires a

determination of this Court. It really is a
question which is related to the manner in which

this particular trial was conducted.

MR ADAMS:  We would submit not. I can put it no higher than

saying that it is important that this Court

enunciate the principle that it is not sufficient

for trial judges to take up a formula, hallowed by

age, as it might be, but which, in the context of

other aspects of their summing up, acquires a

particular or peculiar meaning that the formula

itself was not designed to convey. Now, this, we submit with respect, the Court of Criminal Appeal

failed to do.

It has been stated, I think, in Andrews that

one of the tasks of the Court of Criminal Appeal is

to supervise the administration of criminal trials.

It does so by considering appeals that come before it with a view to assisting - not only correcting that trial but assisting in the due administration

of justice. What it has done in this case, with

respect, is simply to permit summing up by numbers

and we submit that this Court must state, "Look, it

is not enough to say that the High Court has

adopted or supported or repeated a hallowed formula

as to the particular use that might be made of

particular evidence with relation to either

corroboration or, in this case, statements from the

dock, but that real effect must be given to it."

It is difficult to avoid the suspicion that this is really reflecting some judicial hesitancy

or reluctance concerning the institution of the

statement - - -

Chase	13/2/92
McHUGH J: Well, perhaps it is difficult to avoid the

suspicion that the Court of Criminal Appeal is
taking a harder line than it perhaps did years ago
when very experienced counsel failed to take

objections about these factual matters.

MR ADAMS:  Your Honour, that would be a ground - rule 4

provides for such an eventuality.

McHUGH J:	I appreciate that.
MR ADAMS:	But that was not relied on here.  That was relied

on to support an inference that the jury, at the

end of the day, would have unambiguously understood

the way in which they could deal with this

appellant's case.

McHUGH J:  I appreciate that but nevertheless the Court of

Criminal Appeal took into account the silence of counsel as a reason for concluding that the trial

was not perceived as unfair.

MR ADAMS:  Your Honour, as a bottom line, with respect, we

accept that but we say that if it be true that the

language of the trial judge was calculated to

create a substantial risk - we say, higher than a

substantial risk, but at least a substantial that

the jury would not have known properly how to use

the appellant's statement from the dock, then that

cannot be a fair trial whatever might have been the

impression of counsel.

McHUGH J: But the summing up has got to be understood in

the light of the addresses and if there is one

thing that experience as a trial lawyer teaches you

is that the case that you see in the appellate

court frequently bears little relationship to the

realities or the atmosphere of the trial itself.

MR ADAMS: But, Your Honour, with respect, there is no

atmospheric - there is no aspect of the climate in

meaning to His Honour's direct language, with	the court that could possibly have given any other	respect, than the meaning that it naturally
conveys. These are not ambiguous words and, with
respect, for my part - Your Honour has enormously
more experience than me - I cannot think of a way
in which an argument could be put which would
justify a proposition that there is nothing in this case that contradicts this particular or that particular evidence.

I must confess, however, in frankness, that it

is clear - and I and my learned friend have had the

benefit of reading the evidence in the case, but it

must be conceded from reading that that the

accused, in his statement from the dock, ran a very

Chase 6 13/2/92

different case to that which his counsel thought he

was running in cross-examining Fanning. I think,

in fairness, I must concede that and, with respect,

that may well have been the reason why neither

counsel took up the proposition made by the trial

judge. But they were looking at it as counsel with

the various rules about putting cases and so on in

mind. A jury would not have had that in mind. It

is very significant and perhaps it was in favour of the accused that the trial judge did not suggest to

them that they could disbelieve one part of the

statement because it had not been put, or point out
that one particular matter - I think it was going

to get the birth certificate - had not been put to

Fanning - sorry, had been put in cross-examination

but not the subject of a statement from the

accused, and that small matter may have mitigated

in his favour.

But at the end of the day, courts of criminal

appeal cannot, with respect, abrogate their

responsibilities to counsel conducting the trial.

At the end of the day the question must be, "Was

this a fair trial?", making all fair allowances.	I
am not suggesting for one moment that one must not take account of what counsel did and depending on the way in which a case is run and what is said,
that will have a greater or lesser significance.
But at the end of the day, the Court of Criminal Appeal is obliged itself to consider whether there
was a fair trial and, in particular, whether the
defence case was properly and fairly put to the jury to enable them to consider it. Because if that does not happen then under no conceivable
relevant standard can there be said to be a fair
trial as we understand it.

I do not think I can put it any higher than

that, Your Honour. If Your Honours please.

BRENNAN J: Thank you, Mr Adams.

MR ADAMS:  My learned friend reminds that there were two

questions of sentence relevant here. There is one

arising under 16G and one, the general question of

the constitutionality of the Commonwealth Prisoners

Act. We do not press the 16G argument and we would

,~.,	seek to reserve the question of sentence, depending
on what this Court does in relation to the appeal,
the matter presently being under consideration by
this Court.

BRENNAN J: It is the same point as is involved in Leeth, is

it?

MR ADAMS: Identical.

Chase 7 13/2/92

BRENNAN J: Is that so, Mr Weinberg?

MR WEINBERG: It is, Your Honour.

MR ADAMS:  I think on another similar case late last year

which raised the same problem, what the Court did

was, on dismissing the application, as it happened

in that case, gave liberty to apply following the

judgment in Leeth to argue the sentence matter,

depending on what fell from the Court in Leeth. I

mean, for example, if the Court in Leeth dismissed that argument, then it may not have been necessary

or probably would not have been necessary to

trouble the Court with the point. But I understand

that is the way in which -

MR WEINBERG:  Your Honour, I was in that ·atter, and can I

just say - it was the :natter of .:homari, and the

respondent accepts that if the Court rules in a

particular way in Leeth's case, that the sentence

presently imposed could not stand. The matter

would then be simply a question of whether it has to come back to this Court or whether it could be

remitted to the court that sentenced the applicant,

for sentence in accordance with the law to be

passed. That would be a mechanical question that

would have to be addressed at some future time.

BRENNAN J:  Would it be possible, if the Court did rule in

that way in Leeth so as to vitiate the sentence in

this case, for the parties to prepare and file a
consent order granting special leave to appeal,

allowing the appeal and making an order for

remittal?

MR WEINBERG: 

Certainly, Your Honour. We would ask that the

matter be remitted to the appropriate sentencing
court as part of the terms of that order.

BRENNAN J: There would be no difficulty about that?

MR ADAMS:  We should not think so, Your Honour.

TOOHEY J:  I suppose the question is whether, if the

application were otherwise dismissed, a fresh

application was necessary. In other words, should

this point stand adjourned or would the application

simply be dismissed on the footing that, what, a

fresh application filed and consented to?

MR WEINBERG:  Your Honour, we would not see that as being

necessary. As I have said, the respondent would

accept that if Leeth is decided in a particular

way, the effect of that would be to vitiate the

sentence imposed in this case and we would submit

that a simpler course would be the course proposed

by His Honour the learned presiding Judge whereby

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consent orders could be made that the application

in relation to that ground, at least, be granted, the appeal allowed and the matter remitted to the sentencing court for sentence.

TOOHEY J: That would involve keeping this application alive

for that purpose.

MR WEINBERG:  It would, in so far as it deals with that

ground, although the Court could, in our

submission, deal with the other ground at this

time.

BRENNAN J:	We need not trouble you, Mr Weinberg, with regard to the substance of Mr Adams' argument.
With regard to the sentence matter, however, would
the parties consent to the following course,
namely, that so much of the application for special
leave as relates to the sentence and turns upon the
decision in Leeth's case should stand over to a ·
date to be fixed, the parties agreeing that if the
decision in Leeth's case should be such as to
support the views contended for by the Crown, the parties will sign and file a consent order consenting to the dismissal absolute of the
application for special leave? If, on the other
hand, the decision in Leeth should go in favour of
the view contended for by the applicant, then the parties will sign and file a consent order consenting to the grant of special leave, the allowing of the appeal and the remitting of the matter to the court of sentence?

MR ADAMS:  Your Honours, yes. I just point out those are

not the only alternatives. If there is an argument

about it though, the consent enables us to come

back. As I recall reading the transcript of

argument, the Crown might not entirely win nor the

appellant entirely lose.

BRENNAN J: That seems to give rise to the prospect of an

undoubted return, Mr Adams.

MR ADAMS:  If the Crown entirely wins, which is the way I

would interpret what fell from Your Honour, or if

the appellant entirely wins, there is absolutely no

difficulty whatever with our consent to the order

that you propose.

BRENNAN J: In those circumstances, gentlemen, it seems that

the only course to adopt is now to dismiss, as I

will shortly dismiss, the application for special

leave relating to the conviction. And so far as

the matter relates to the question of sentence, to

stand over the application for special leave with

respect to sentence so far as that application is

based upon the decision to be given by this Court

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in Leeth's case, it being understood, however, that

if the Crown is entirely successful, then the

application will be dealt with in the manner which

I indicated. If the defence is entirely successful, then it will equally be dealt with in

the manner which I have earlier indicated. But

otherwise, the application will stand over

accordingly.

MR ADAMS:  We would accept that, Your Honour.

BRENNAN J: It remains therefore to deal with the

application so far as it relates to the question of

conviction.	On this, we need not call upon you,
Mr Weinberg.

A contest as to the meaning of the words used

and the impression conveyed by a summing up,

without more, will seldom justify the grant of

special leave to appeal when a Court of Criminal

Appeal addresses correctly the function it is

charged to perform.

In the present case, Mr Justice Lee, Chief

Judge at Common Law, appreciated the nature of the

function which the court was to perform and cited

from Reg v Tripodina and Morabito, (1988)
35 A Crim R 183 a passage which appropriately

states the approach to be taken by a Court of

Criminal Appeal when objections to the terms of the

summing up are taken for the first time on appeal.

His Honour cited the following passage:

Although the court is obliged to be astute to

secure for the accused a fair trial according

to law, in accordance with what was said in

Pemble, none the less, in my opinion, it

should be astute also to ensure that points,

especially those of little or no merit, which

were not thought by counsel appearing at the

trial to be of any great significance, should

Furthermore, the fact that no objection was	not be raised for the first time on appeal.
taken at the trial is in many cases cogent
evidence of the fact that, having regard to
the atmosphere at the trial and the manner in
which it was conducted, the matter later
complained of was not regarded as being of
significance, or likely to give rise to any
miscarriage of justice.
At base, the question which counsel for an

appellant would be constrained to raise in argument

on appeal in this case is the meaning to be

attributed to the summing up, challenging the

meaning attributed to that summing up by the Court

of Criminal Appeal.

Chase 10 13/2/92

Despite the powerful argument delivered by

Mr Adams, that consideration makes this case an

unsuitable vehicle for raising any question

justifying consideration on appeal to this Court.

Accordingly, special leave will be refused.

That disposes of the conviction and, as I say,

the application in respect of sentence to the extent that I have indicated will stand over.

AT 10.27 AM THE MATTER WAS ADJOURNED SINE DIE

Chase 11 13/2/92