Clune v The Queen

[2003] HCATrans 650

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A44 of 2002

B e t w e e n -

PETER PATRICK CLUNE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 APRIL 2003, AT 10.45 AM

Copyright in the High Court of Australia

MR B.E. WALTERS, SC:   May it please the Court, I appear with my learned friend, MR A.J. PALMER, for the applicant.  (instructed by Amad & Amad Lawyers)

MR P.J.L. ROFE, QC:   May it please the Court, I appear with my learned friend, MS G. DAVISON, for the respondent.  (instructed by Director of Public Prosecutions for the State of South Australia)

McHUGH J:   Yes, thank you, Mr Walters.

MR WALTERS:   Although the Court has considered the nature of directions which may be made in circumstances where an accused does not give evidence in three cases over recent years, if one includes Dyer’s Case in that group, none of those decisions resolved the questions raised by the applicant’s case.  Even if the trial were held today, there is uncertainty as to how to approach the matter.  Can I take the Court to certain features of this case which make it different from the cases where the issue of judicial comment on an accused’s failing to testify had been considered.

First of all, unlike Weissensteiner, RPS, Azzopardi and Dyers, this was a joint trial.  Further, the co‑accused gave evidence exculpating the applicant.  Obviously, that evidence was not in the result accepted but at the time the trial judge was directing the jury as to the failure of the applicant to testify, the circumstances were that there was an explanation before the jury for the facts that the Crown had placed before the jury.

Joint trials raise important issues.  The thrust of the cases hitherto has been to restrict comments of trial judges where an accused has not testified to cases where the accused, and the accused alone, is likely to have knowledge of certain facts.  None of the previous cases have considered the situation where there are multiple accused.  The previous cases have also not settled the issue of the warnings which should accompany comments where an accused does not give evidence.  In our submission, this is a good vehicle for the consideration of the questions raised.

HAYNE J:   Is it?  It all happened a very long time ago and the events into which inquiry would have to made occurred in November 1996.  The trial is February 1999.  The jury, at the joint trial of the applicant and the other accused person, took a very short time to convict in what was, on one view of the matter, a very strong circumstantial case.  Why should this Court take up this case more than three years after conviction, more than five and a half years after the events that give rise to the charges?

MR WALTERS:   Your Honour’s question raises the other aspect of our application which is, of course, the application for an extension of time.

HAYNE J:   No, it raises both, about whether the interests of justice in the particular case, or the interests of justice generally, require a grant of leave.

MR WALTERS:   Yes.  First of all, your Honour, there are many cases much older than from 1996 to the present, six and a half years, which are commonly dealt with in the criminal justice process.  Secondly, there is no prejudice ‑ ‑ ‑

McHUGH J:   I cannot recollect any case where this Court has granted special leave over three years after the decision of the Court of Criminal Appeal.

MR WALTERS:   I can, in Dietrich, if the Court pleases.  Mr Dietrich had in fact served his sentence.

KIRBY J:   Dietrich tendered a very important principle to the Court ‑ ‑ ‑

HAYNE J:   Concerning process, not conviction.

MR WALTERS:   It was an appeal, ultimately, that led to the quashing of the conviction but, yes, I follow what your Honour is saying.

KIRBY J:   The big hurdle you have to get over in my mind, I have to say, is the very strong circumstantial case that tends to suggest that we could go through the process, we could extend the time, we could look at the directions, but in the end this is such an overwhelming Crown case that it would lead nowhere.

MR WALTERS:   We do not accept for a moment that it is a strong Crown case – circumstantial case.  What we submit to the Court in relation to that general question is as follows.  The only issue was an issue of identity.  There is nothing else.

HAYNE J:   What, having been found in possession of the proceeds and tools of trade?  He was, was he not?

MR WALTERS:   No, he was found ‑ ‑ ‑

HAYNE J:   He was in the car.

MR WALTERS:   He was in a car.

HAYNE J:   Yes.  He was driving and on the key ring was the lock, the key to the lock of the box in which the proceeds and the tools of trade were found.  Do I sufficiently state it, Mr Walters?

MR WALTERS:   Yes, but none of that evidence – despite all the access to the implements used in the armed robbery and the proceeds, there is, for example, no forensic evidence whatever, fingerprint, DNA – they had the masks and the wigs worn by these men – no DNA evidence at all linking the applicant to this, and if one ‑ ‑ ‑

KIRBY J:   The key to the box was on your client’s key ring in his car?

MR WALTERS:   No, it was on my client’s brother’s key ring for his brother’s car.  He was driving it, yes, but it belonged to his brother so that that evidence is equivocal.  It is equally capable of inculpating his brother, and that is a very important circumstance when one considers that the trial judge gave a direction of law, as he described it, as to the way the jury could use the accused’s silence.  There were not only those facts which were equivocal, but also there was, in fact, express evidence in inculpating the brother from the co‑accused.

In our submission, that in itself raises a situation where a jury might think, “Well, this is made stronger by the non‑evidence of the accused”.  We would submit that finding the material in the car is not sufficient to place – there is certainly no direct evidence of knowledge by the applicant of the contents of the box.  That would have to be inferred.

KIRBY J:   He is hardly likely to admit it.

MR WALTERS:   He did not, in the result, but if one is dealing with the inferences available it is one thing to say he is driving a car when he knows what is in the car.  We have a locked boot.  Yes, he is driving the car and on the ignition key are the keys to the box but, in our submission ‑ ‑ ‑

HAYNE J:   This is driving back from the airport?

MR WALTERS:   From the airport where it had been ‑ ‑ ‑

HAYNE J:   Where who had collected the box from the airfreight?

MR WALTERS:   The co‑accused.

HAYNE J:   Yes.

MR WALTERS:   In our submission, the ‑ ‑ ‑

McHUGH J:   Your client missing overnight, not seen at his home residence.

HAYNE J:   Picked up by the police driving on the road to Adelaide, driving his brother’s car.  You can be stiff sometimes, Mr Walters, can you not?

MR WALTERS:   It just shows the price of speed.  So far as each of those elements – there is no doubt that this was a case which had to go to the jury.  The question is – and the Court is indicating that it was overwhelming – the fact that he is driving his brother’s car a week earlier is, again, equivocal.  The fact that he was not home the night after the offences occurred, again, is equivocal.  Those factors do not inevitably lead to the kinds of inferences that the Crown sought to have the jury draw.  In our submission, this is not a strong circumstantial case.

It is far removed from the kind of Weissensteiner situation where a man is alone on a boat in the middle of the ocean.  People are away from their homes of an evening.  People do drive their brothers’ cars.  Those factors cannot give rise, in our submission, to an inevitable conclusion of guilt.

McHUGH J:   If he was innocent, he must have been a very unlucky man.  There is a robbery in Adelaide, he is in a car – in his brother’s car driving towards Adelaide ‑ ‑ ‑

MR WALTERS:   I think driving away from Adelaide, your Honour, yes. 

McHUGH J:   Well, away from Adelaide.  The proceeds of crime and the disguises are in a box addressed to your client’s employer, as well as Gergis’s, and then your client is going out to the airport, with Gergis, to pick up the box, he is driving the car and the keys to the box are on the key ring.  Now, really, a jury would have to be stupid to think that your client was not guilty.

MR WALTERS:   We do not accept that characterisation, your Honour.  We are not saying that a jury would not, properly instructed, be entitled to come to a verdict of guilt or otherwise but we say that in this case they were not properly instructed.  It was not a case, and cannot be said to be a case, in our submission, where conviction was inevitable as a result of this evidence.  It was a very – as we have said – weak Crown case.  There are things that one would ordinarily expect to find which just are not present in this case.  I have mentioned the forensic material where it is an identification situation.

Can I take the Court to the direction that was in fact given in respect of the applicant at pages 25 and 26 of the application book?  The Court will be aware that there was much in common in the Crown case against the two accused.  That part of the Crown case which was specifically directed to the applicant commences at page 25 of the application book at line 18:

I now turn to the specific case against Mr Clune.

And certain matters are identified.  That direction specifically dealing with Mr Clune, the applicant, ends towards the bottom of page 26 of the application book.  The Court will see that at line 8 commences the direction about the applicant not giving evidence, and that continues down to line 37.  More than half of the charge concerning the specific case against the applicant is focused on his failure to give evidence.  Could I take the Court, particularly, to line 13 on that page?  Perhaps I should, for completeness, go to line 11:

You are not to infer guilt from the fact that he –

that is, the applicant –

has exercised that right which the law gives them.

However, you can use the fact that he has not given evidence in answer to the charge in the following limited way and in no other way, and this is a direction of law; you will remember that I have told you that this is a circumstantial case and you will remember that I have told you that a circumstantial case means the Crown ask you to infer guilt from certain proven circumstances, and you have just heard me go through those circumstances which the Crown rely upon which is common to both accused and which are relevant to Mr Clune specifically and I have just mentioned them.

In asking you to draw inferences of guilt from those facts which you have found proven and which I have set out, you might readily draw those inferences, and more easily draw those inferences, by virtue of the fact that the accused has not given evidence on the topic of those items of evidence.  The fact he has not given evidence cannot be used as positive evidence to support the Crown case and it cannot bolster up the Crown case if there happened to be any gaps, but it can be used in the limited sense you might be able to more readily draw the inference that it was the accused who was one of those people who committed the crime by virtue of the fact he has not given evidence on those pieces of circumstantial evidence that you might think are peculiarly in his own knowledge.

His Honour reminds the jury of:

the topics . . . his possession of the car on the morning –

as I have already submitted, we say that that is equivocal –

the fact that in the boot of the car which he had in his possession was incriminating material, and the fact that on the key ring of the car was the key to the box containing the incriminating material.  It is only in that limited way that it is more readily able to draw the inferences from those proven facts that I have recited that you can use the fact he has not given evidence.

That is my summary of the law, my directions of law and my summary of the Crown case and the defence cases.

The learned trial judge did not give adequate qualifications in his directions, in our submission.  First of all, his Honour described it as a direction of law, then his Honour does not proffer to the jury the usual reasons as to why people might not wish to give evidence.  Indeed, in dealing with counsel’s submissions to the jury in that regard at page 31 of the application book, in our submission, the trial judge was dismissive of those suggestions.  At about line 9 of that page:

He –

that is, counsel for the applicant –

said it would be wrong of you to infer that an accused person is guilty because he has not gotten into the witness box and given evidence.  You will remember my directions about Mr Clune not giving evidence.

He put to you some hypothetical reasons as to why a person may not give evidence and he mentioned the hypothetical circumstances such as a desire to protect and not to implicate other people and also because the Crown case itself might be tenuous.  Whether you think that applies to this case is a matter for you.

Now, one of the issues that is squarely raised in this application is the meaning of the words “peculiarly within the knowledge of the accused”.  That is the terminology that has been used in RPS and, particularly, in Azzopardi, where there is very specific reference to the accused, and the accused only, having that knowledge.  At paragraph [61] of Azzopardi and [62] in the majority judgment there are strong statements in that regard: 

they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person –

The respondent contends that that means the accused, to the exclusion of the Crown, possesses knowledge of the facts.  In our submission, particularly in the context of a joint trial, that is apt to give rise to miscarriages of justice and it gives licence to poor investigation, because if the Crown does not know, and the accused could be thought to know, then the accused must either give evidence or face the comment.

KIRBY J:   Justice Debelle, in his dissenting opinion, expressed the view that was favourable to your client’s success in that court, but he said he did so on balance and with a degree of hesitation – that is on 96.  He pointed out that there had been:

a clear direction on the onus of proof –

earlier, and it had been repeated.  That is at 96, paragraph 198.  He does not seem to have gone on to consider, in the state of such a very strong case, on one view, the issue of the proviso.

MR WALTERS:   Yes.  The directions as to onus of proof were given the previous day and when the jury came to consider the case against Mr Clune, ringing in their ears was nothing about the burden of proof.  Ringing in their ears was the direction of law which the trial judge had given in relation to the accused’s silence.  I am not sure if I have dealt with your Honour’s ‑ ‑ ‑

KIRBY J:   In a way, the significance of that failure takes on an added force because of the strength – on one view, the very great strength – of the prosecution case.

MR WALTERS:   Yes, because it is easy to become distracted, when one is considering weighing up the elements that one has to do and the process of inference, by the question of the silence that has taken place.  In our submission, that is what happened.

KIRBY J:   But it would be a natural process of logic and jury reasoning to say that where the case is apparently a strong case – Justice Debelle said your client had a lot to answer, a lot to explain – the failure to do so becomes more telling.

MR WALTERS:   Yes.  That would be contrary to the whole concept of an accusatorial criminal justice process, in our submission.  I think I have run out of time.  If the Court pleases.

McHUGH J:   Yes, thank you.  The Court need not hear you, Mr Rofe.

In March 1998 the applicant was convicted of offences of armed robbery, wounding with intent to cause grievous bodily harm and unlawful wounding allegedly committed on 14 November 1996.  On 19 February 1999 his appeal against conviction to the Full Court of the Supreme Court of South Australia was dismissed.

In April 2002, more than three years after his conviction and five and a half years after the events giving rise to the charges, he made application for special leave to appeal to this Court.  An application to extend time for the application is necessary, but a delay of such length would bring about an extension of time only in exceptional circumstances.

The case against the applicant, though circumstantial was overwhelmingly strong.  The jury at the trial took only a short time to return verdicts of guilty.  Neither the interests of justice generally, nor the interests of justice in this particular case require the grant of special leave to appeal.  Because of this conclusion the application fails and the application for extension of time is rejected.

AT 11.09 AM THE MATTER WAS CONCLUDED