De Silva v The Queen

[2019] HCATrans 176

[2019] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B24 of 2019

B e t w e e n -

NERANJAN AGRAJITH KALUBUTH DE SILVA

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 SEPTEMBER 2019, AT 10.00 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If it please the Court, I appear with my learned friends, MS P. MORREAU and MR B.P. DIGHTON, for the appellant.  (instructed by Robertson O’Gorman Solicitors)

MR M.R. BYRNE, QC:   If it please the Court, I appear with my learned friend, MR P.J. McCARTHY, for the respondent.  (instructed by the Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ:   Yes, Mr Callaghan.

MR CALLAGHAN:   Your Honours, we have foreshadowed in paragraphs 4 to 6 of the appellant’s submission an application to amend the notice so as to fully capture the issues which are raised in the appeal.

KIEFEL CJ:   You require leave for that purpose.

MR CALLAGHAN:   I do.

KIEFEL CJ:   The matter was not raised in the Court below?

MR CALLAGHAN:   It was not explicitly pleaded in the special leave application in the way that the notice now reads but it does reflect the issues that were canvassed in the special leave application and is calculated to give effect to them were we to be successful.

KIEFEL CJ:   What is the respondent’s attitude?

MR BYRNE:   We have not taken issue with the application.  We accept that the argument in the special leave application is reflected in both grounds, including the amended ground, and on that basis we did not take any issue and do not take issue.

KIEFEL CJ:   While you are on your feet, Mr Byrne, the question of the proviso, that would require a notice of contention, would it not, if you were going to advance argument?

MR BYRNE:   And we are not.

KIEFEL CJ:   You are abandoning that?

MR BYRNE:   Yes.

KIEFEL CJ:   Good.  Thank you, Mr Byrne.  The Court will hear argument in relation to special leave as part of the hearing on all issues today.

MR CALLAGHAN:   Yes, thank you, your Honour.

BELL J:   Just to be clear, is the proposed further ground designed to capture this aspect of your argument?  Your argument remains posited on the asserted miscarriage of justice that arose by reason of the failure to give a Liberato direction.

MR CALLAGHAN:   Yes.

BELL J:   The new ground takes up that the Court may well consider there was no legal error in failing to give a Liberato direction, but that the real complaint is the absence of a direction along those lines occasioned a miscarriage of justice.  Is that the way it is put?

MR CALLAGHAN:   Yes, the absence of – I think the way the argument has developed is that it is the absence of directions which correctly explained to the jury the application of the standard and onus of proof in the circumstances of the case.  We can go to the argument.  But the notice is simply that the Court of Appeal erred in holding that the directions given were adequate and erred in not holding that a miscarriage of justice occurred because of that.

GORDON J:   Does that mean it extends to a contention that, contrary to Alford v Magee and maybe RPS, the real issues in the particular case were not outlined in the directions to the jury?

MR CALLAGHAN:   Yes.

GORDON J:   I see.

BELL J:   That is a substantial expansion of the matter that was the subject of the grant of leave.

MR CALLAGHAN:   Well, we would respectfully submit that the argument will not go much beyond that which was canvassed in the special leave but the terms read more widely, but the argument is substantially the same.

KIEFEL CJ:   What about in the Court of Appeal?

MR CALLAGHAN:   Well, in the Court of Appeal as well it focuses on the adequacy of the directions and the error in a specific part of the directions, the two paragraphs in which the appellant’s version of events was discussed by the trial judge.

KIEFEL CJ:   To what extent do you rely upon the redirection that was given after the jury requested assistance in relation to the question of the meaning of “reasonable doubt”?

MR CALLAGHAN:   We do rely on that in argument.  We rely on it to illustrate our point.  But there is no issue taken with the direction that was given at that point.  We are not seeking to expand it to that extent.  But it does, as I say, form part of the argument for the purpose of illustration.

KIEFEL CJ:   Thank you.

MR CALLAGHAN:   As we have already canvassed, the appeal concerns the directions that must be given to juries in a criminal trial and the directions in question are directed to concepts as fundamental as the onus and standard of proof.  It is accepted, of course, that the jury in the appellant’s trial received instructions about these concepts at several points in the summing‑up. 

In the core appeal book on page 8, at line 35, over the top of page 9, they received such directions.  There is an echo at the base of page 9 in context of instructions about the significance of the fact that the appellant did not give evidence.  On page 10, at line 6, there is reference to the requisite standard and further mentions of reasonable doubt on that page.

On page 14, just before his Honour turned to the addresses of counsel, at lines 10 and 15, the words “beyond reasonable doubt” were attached to directions about the elements of the charge.  That passage on page 14 includes, at line 17, a reference to a particular of the case, namely, that penetration was alleged to have been effected with the appellant’s fingers. 

Save for that particular, the other references to which we have just taken you contain no explanation as to how the relevant concepts applied to the facts of this case.  Rather, those other references were explanations of the law delivered only in general terms and, as has already been observed, this was one of those juries which asked the trial judge for something that has been requested with relative frequency these days, namely, for some guidance as to how they should have decided whether or not they had a reasonable doubt.  Your Honour the Chief Justice has already referred to that passage.

Our submission is that the jury ought, to use the language cited in Van Leeuwen v The Queen, have been given certainly to understand that the appellant was to be acquitted if the Crown case had not been proven beyond reasonable doubt, and there was a feature of the case which imperilled that certainty.  Specifically it was what we will call for convenience a “word against word” case and therefore one in which a certain danger was present.  That danger was that the jury would doubtless ask themselves the question who is to be believed; whose version is to be preferred. 

That likelihood, we submit, self‑presented.  It would have been higher if the judge or someone involved in the case had presented the case as being a choice between two versions of events.  That did not happen, but we say the concern arose by virtue of the nature of the case.  It was a concern that was identified in Liberato, which is the case that has given its name to the model directions calculated to eliminate the danger that arises in this situation, and no such direction was given. 

Now, we have already acknowledged that other general directions were given.  We also acknowledge that the Court must operate on the assumption that juries follow directions, but the Court does not assume, we submit, that a jury is unaffected by human tendencies, unaffected by the tendency to make decisions by balancing things up and deciding which of two choices is the most likely and the choice in this case, as it presented to the jury, must have appeared to be a binary one.

BELL J:   Can I just stop you there.  When you say “and the choice which was presented to the jury”, in Liberato the trial judge did invite the jury to consider that they might approach their deliberations on the basis of who do you believe.

MR CALLAGHAN:   Yes.

BELL J:   That was in the context of sworn evidence from the complainant and sworn evidence from the accused.

MR CALLAGHAN:   Yes.

BELL J:   In this case, the accused did not give evidence and an appropriate direction was given about that matter.  I understand your argument depends on the tendency of the jury to look to what it was the accused said in his recorded interview.

MR CALLAGHAN:   Yes.

BELL J:   The matter that I raise with you is that it might be thought to put it high to say that the way the matter was presented to the jury was one of a choice between two accounts.  If one looks even to the way the trial judge summarised the arguments of counsel, concluding with his Honour’s summary of the defence case, one sees no suggestion of a choice but rather the emphasis on the matters affecting the complainant’s credibility which the defence submitted would not remove a reasonable doubt.

MR CALLAGHAN:   Yes.  When we speak about the way it presented perhaps we should say the way it must have appeared.  We allow that neither the judge nor counsel presented it themselves in that fashion but we revert to the proposition identified by Justice Brennan, as his Honour then was, in Liberato where he said, “This is doubtless a question that the jury is going to ask themselves”.

That is our point – that in a case of this nature it is going to appear to a jury to be a choice between two different versions of events.  We can come to the question of whether it made a difference as to whether one was sworn or unsworn, but in identifying the true issues in the trial there is no escaping the proposition that it was as simple as the complainant saying that penetration did occur and the appellant saying that it did not.

BELL J:   It must follow from this submission that in any case, save a case where there is no material before the jury suggesting a version different to that of the central prosecution witness, that a Liberato‑style direction need be given.  If it is a case of a bank robbery and the teller gives some critical evidence and the accused, in the record of interview, says, “It is not me,” but does not give evidence, do you need a Liberato‑style direction?

Every direction must be calculated to address the issues raised in the trial.  But if it appears to be a binary choice, if it has that appearance, then a proper explanation as to the operation of the onus and burden of proof will involve explaining to the jury that what appears to be binary is really a tripartite situation. 

BELL J:   So, to take the example I give you, the bank teller gives evidence of having identified the accused in an identification parade.  The accused does not give evidence but in his interview with the police says “I never did that”.  Is the jury to be given some Liberato‑style direction in order to properly understand where the onus of proof lies in that circumstance? 

MR CALLAGHAN:   I am struggling with the example because, as your Honour knows, in that situation a separate set of directions will apply to the dangers of identification evidence which ‑ ‑ ‑

BELL J:   That has nothing to do with the point that I raise.  Let us say the bank teller gives some account of the individual having some distinctive feature, which it is suggested the accused has and which the accused has not denied having, but the accused says “It was not me” in his interview with the police.  The matter I am raising with you, Mr Callaghan, is if your present argument is successful then it seems to me it has implications for any circumstance where one can say the jury is looking at “Do I accept the evidence of a particular witness or witnesses as establishing the case beyond reasonable doubt” or, are things that were said in the interview by the defendant, sufficient to raise a doubt.

MR CALLAGHAN:   It will have application in cases where the prosecution evidence is sourced to a single witness.  So, if, in the situation your Honour posits, the only evidence implicating the accused is a bank teller and the evidence is denied by the accused then, yes, that will appear as a binary situation.

BELL J:   I understand.

MR CALLAGHAN:   But those are the situations that we are concerned with where the Crown case reduces, really, to evidence from a single witness, word against word. 

BELL J:   When we use “word against word” commonly in this context it does refer to a conflict in sworn evidence.  One matter that I would raise with you is this, that there is a tendency – defence counsel would say – when calling an accused for there to be, as it were, the risk of the onus shifting, subtly, as you would appreciate, Mr Callaghan. 

MR CALLAGHAN:   Yes.

BELL J:   Up to then, the emphasis is on acceptance or no of the Crown case.  If the accused gives evidence it is thought that the focus becomes what do we make of the accused.  For that reason, it has been common in the past for defence counsel to be cautious about calling an accused.

MR CALLAGHAN:   Less so these days.

BELL J:   That is not an issue that arises in a circumstance where the jury have before them as part of the prosecution case the answers that the accused gave in an interview.  It is a different forensic setting.

MR CALLAGHAN:   It is, but the issues are nonetheless framed in the same way, that is, there are opposing versions which cannot stand together, whether they be sworn or unsworn.  The trial is of an identical nature.  It is word against word, and the directions must be framed accordingly, in our submission. 

The problem in this case is that the directions which ought to have made clear to the jury are no doubt things which, if a jury was a different type of organisation from what it is, could have been worked out by themselves, but as Justice Callinan observed in Gilbert v The Queen the jury room is not a place of “undeviating intellectual and logical rigour”.  It is such rigour, we respectfully submit, which has produced the directions such as those articulated by Justice Kirby in Anderson and which has produced the model directions which are employed throughout the country.

These directions acknowledge that a jury’s verdict will be affected by the choices made available to it.  It is on that basis that we can and do maintain that a miscarriage of justice occurred in this case because one of those choices, it ought to have been made clear, was that an acquittal might flow simply because the jury did not know what the truth was.  That was not a choice that was made available to the jury and the appellant thereby lost the chance of an acquittal by that method.  It is in that way we submit that a miscarriage of justice can be demonstrated.

We submit, with respect, that the Court of Appeal erred when it held that there was no need to give the direction which would have ensured proper application of the onus and standard of proof.  The court so held first and independently on the basis that the appellant’s version was unsworn.  It would have decided the case, it would seem, on that basis alone.

We pick up on the point that was just being discussed.  The fact that the version was unsworn did not change the nature of the case.  It did not change in which the issues ought to have been identified, and the directions should have been framed according to those issues and specifically to the issue that this was a case in which only two people knew the truth and their versions were antithetical.

We have taken you, in the written submissions in paragraphs 51 to 53, to some Western Australian authority on the point.  There is one other Western Australian case to which I would seek to make reference, and that is the case of Salmon, which I think is at tab 26 of volume 2 of the joint book of authorities.

GORDON J:   Before you get to Salmon, in RMD President Buss addresses in effect a question about the circumstances in which a Liberato‑type direction might be required, regardless of the language used.  He talks about there being “no real (as distinct from a fanciful) risk that the jury” may otherwise have the impression that disbelief of the accused’s evidence or a preference for a complainant’s evidence means the State has “proved its case beyond reasonable doubt”, and then goes on to in effect identify that that problem might arise as a result not only of just evidence being given, but something that counsel might have said or – do you accept that that is an appropriate way of looking at it?

MR CALLAGHAN:   In itself, yes, but we would go further, as we already have, to ‑ ‑ ‑

GORDON J:   The question is do you need to go further?  This is really an answer to Justice Bell’s question.

MR CALLAGHAN:   A risk has to be identified, yes, and we say that that risk is identifiable the moment you have a case of this nature and it does not depend upon something said by a trial judge or counsel or anything like that.

GORDON J:   It may.

MR CALLAGHAN:   That would - yes, certainly the risk would be increased by such things.  We do not point to an error in that way here but we nonetheless say the risk arose.  But there is nothing wrong, with great respect, with the analysis.

GORDON J:   Just so I am clear about that, is it the position that you do not challenge what appears at page 14 of the core appeal book – sorry, page 11, I apologise – from lines really 7 onwards, but most particularly at lines 14 through to 23.  I thought the way I had read your submissions was that you sought to challenge the fact that in a sense the direction was talking about innocence.

MR CALLAGHAN:   I am sorry, your Honour, yes, of course we challenge those, and I was going to come to that when we were speaking about the adequacy of the directions as a whole.  I was focusing for the moment on the need for a Liberato tripartite or however it might be described direction in terms similar to those identified by Justice Kirby in Anderson or something like that.  I do propose to address some detailed submissions to the passage that you have identified.

GORDON J:   Thank you.

NETTLE J:   Is the thrust of those submissions to be that because of the nature of the directions given at page 11 that in itself, quite apart from the fact that this was a sexual offence case, gave rise to the need for a Liberato direction?

MR CALLAGHAN:   Yes.  If a Liberato direction had been given, the errors which we say appear in that section might more easily have been explained away.

NETTLE J:   Or given, yes.

MR CALLAGHAN:   But this is where the questions do overlap, where grounds 1 and 2 do overlap, and where it does get a bit artificial to consider them separately because we are talking about the efficacy of a summing‑up in explaining the onus and the standard.  The failure to give a Liberato direction was an important aspect of that.  That was a sin of omission, we would respectfully submit, and on page 11 we have sins of commission, with respect, in terms of the way that the onus was explained in those passages.  I will not dwell on Salmon.  It is not integral to our submissions.  But can I just ask you to look at the passage at page 587 in passing.  There is an extract there from the summing‑up of the trial judge.

GORDON J:   Could you please tell me what paragraph you are reading from of the judgment?

MR CALLAGHAN:   The paragraphs are not numbered but it is the second‑last one from the bottom of the page.

GORDON J:   Thank you.

MR CALLAGHAN:   Paragraph 10, I am told.  I am sorry, the number is on the previous page but it is merely an illustration, and no more than that, of the way in which the trial judge in that case saw the danger where he talked about the decisions that jurors make in other parts of their lives where they balance things up and decide which is the most likely to have happened.

Whilst in the case, though, if we go to 607 in the judgment of Justice McKechnie at paragraph 103 – this might come back to questions asked by both your Honours Justice Bell and Justice Nettle – we do not quibble with the proposition in paragraph 103.  We are not seeking to elevate the Liberato direction to a status of principle, the absence of which will inevitably lead to a conclusion that there has been an error of law.  We do not and do not need, in our respectful submission, to put things that high.

Finally, on that decision, can I point to it as an illustration.  If you were looking at any of the other cases decided by intermediate courts of appeal many of them say things like “A Liberato direction was not required in this case” but in the context where the trial judge has said something like the passage that I have already taken you to which, if not a Liberato direction, at least goes some way towards warning the jury against the process of reasoning which they might otherwise be tempted to follow.

Neither the Western Australian authority nor any other reason has been invoked by the respondent in support of the proposition that the source of the evidence, be it sworn or unsworn, is decisive of the issue as to whether or not a direction of the kind for which we contend ought to have been given.  With respect, we would say that is consistent with the concession made in the Court of Appeal that the direction would have assisted the appellant’s case and no attempt has been made to invoke the proposition that it would be undesirable.

BELL J:    The real question is a Bromley‑style question:  was there a perceptible risk of miscarriage in the event that such a direction was not given?

MR CALLAGHAN:   Yes.  That is what I hoped we were suggesting before when I was talking about the way in which the argument leads to the conclusion that there was a miscarriage in this case.  Briefly put, the source of the evidence may affect weight.  We have no issue with the proposition that an unsworn version of events may have less weight than a sworn version and that the jury may be directed accordingly.  That is not an issue.  Questions of weight are for the jury.  We are talking about the directions of law which had to be decided by the trial judge and ne’er the two should intertwine, in our submission. 

Then, it was said by the Court of Appeal – and here we get to the broader question, I suppose – that the summing‑up as a whole conveyed to the jury that they could not convict if the appellant’s exculpatory answers left them with a reasonable doubt about the appellant’s guilt.  That is the conclusion in the core appeal book, page 46, line 50. 

To that we say if that assertion – if that conclusion, sorry – is to be supported, then it should be open to point to some explanation given to the jury about the significance of the appellant’s exculpatory answers.  Such explanation, as there was, is contained in the two paragraphs to which your Honour Justice Gordon has already taken me and they are the ones that appear on page 11 of the core appeal book. 

At the outset can we note that nothing in those two paragraphs – and I am talking about the paragraphs between line 14 and line 23 on page 11 – nothing there mentions the concept of reasonable doubt.  This is at the core of our submission because it is our complaint that the appellant did not have his case decided by a jury which had the significance of that concept explained to him by reference to the circumstances of his case.

We focus inevitably on page 11 at line 16 on the use by his Honour of the word “accept”.  This is the subject of some debate.  Before even embarking upon this exercise may we respectfully submit that in some of the arguments that are being made, perhaps on both sides about this point, we are in danger of reading this transcript as if it was a statute and not for what it was, which was a spoken address delivered in real time to people who were unlikely to be unfamiliar with the concepts involved or rules of statutory interpretation and who were likely to give to any words that they heard, the natural meaning as ordinarily understood.  That is where we will conclude with this argument. 

But, for all of that, there are some points to be made about the use of the word “accept” at that particular point of the summing‑up.  It is relevant to pay special attention to the point of the summing‑up at which it was used.  It was a central and critical part of the summing‑up, to use the words of – to use the language of Justice Gaudron as used in Murray v The Queen.

This was the point, in the summing‑up, where the functional relevance of the appellant’s account should have been explained.  Indeed, this is a logical point at which a Liberato direction or something resembling it might have been given, but instead, what did occur in those brief paragraphs was a direction in which the jury were told, well, I do not need to read out the words, that they appear. 

Now, it is said against us that by using the word “accept” at that point his Honour clearly meant “accept that the defendant said those things”.  This was the way in which the Court of Appeal decided the case and the argument is repeated by the respondent in this Court.   

GORDON J:   How do we deal with that, given what appears in the paragraphs on the previous page?

MR CALLAGHAN:   We deal with it in this way.  First of all, we deal with it by recognising that it is – that it appears in one of perhaps seven or eight, depending on how you count it, paragraphs that address the appellant’s exculpatory version of events.  But those paragraphs are clearly divided into two sections.  The first five or six relate to the way in which the interview with the appellant might be used against him and the final two are those in which his Honour addressed the way in which they might be used for the appellant.

There is no reason to suppose that a jury would import from the first part anything in order to give meaning to words spoken in the second part.  We further note that in the first paragraph of the eight in question, on page 10 at line 30, his Honour referred to statements you can hear.  There was no suggestion that there was any issue about whether anything in the interview could or could not clearly be heard.  Similarly, on page 11 at line 14, his Honour says that “the appellant gave answers” and his Honour had a view – or his Honour could give an indication as to what he thought those answers might be indicative of.

There was no suggestion that there was any inability to hear those answers and nor, sensibly, could there be because if you go back to page 10, at line 43, the whole question as to whether or not any issue was to be made of this was laid to rest, we say, by his Honour at that point.  It is a recording; you can listen to it.  No suggestion of any difficulty involved in hearing it.

BELL J:   His Honour plainly felt duty bound, notwithstanding that it was a recording and it was audible, consistent with authority to make clear to the jury insofar as answers were relied upon as inculpating the accused that the jury had to be satisfied, firstly, that the statement was made by him and, secondly, that it was true.

When his Honour came to giving the direction insofar as answers were relied upon in the accused’s case, he repeated the language of acceptance from the earlier direction, and it may have been preferable for his Honour not to.  But I mean one matter you need to deal with is, in light of your acknowledgement that we are not construing this summing‑up as a statute, that counsel who was there and heard it made no complaint.

MR CALLAGHAN:   We deal with that in three ways.  We say, first, that there was no – given the potential for prejudice that flowed from the possibility that the word would have been understood according to its natural meaning there was no objective benefit, no objectively justifiable reason why counsel would not take the point.

Having said that, whilst not justifiable, it is perhaps explicable because the direction was being read, it would seem, from the model directions, which are included in the materials, and which are published to judges and counsel and to which counsel may well have felt he could not take objection given that they took that form.

The third point that we would make is that this is a particularly sensitive issue in a criminal trial, so much so that a similar error in Murray v The Queen was the subject of a successful appeal, notwithstanding that no redirections were sought in that case.  The complaint was not even identified as a ground of appeal in the Court of Appeal in that case and no argument, it would seem, written or oral, was even directed to the Court of Appeal about that error in that case.

Nonetheless, the sensitivity of it and the importance of it was such that this Court had no difficulty in adopting – or in approving of Mr Justice McPherson’s dissenting judgment in the Court of Appeal where he identified this as an error which was decisive.

BELL J:   Obviously, every case depends on its circumstances ‑ ‑ ‑

MR CALLAGHAN:   Of course.

BELL J:   ‑ ‑ ‑ but the matter that you do necessarily have to address to the extent that you acknowledge that what one is looking at is how would this have impressed itself on the jury is that counsel did not take an objection, and I understand your submission about the format of the Bench book.

MR CALLAGHAN:   Well, it is the format of the Bench book and the importance of the error.

BELL J:   Yes.  You understand the matter I raise with you?

MR CALLAGHAN:   I do.  The passage in question also, as we have submitted – sorry, one argument that is made against us in relation to this particular passage is that somehow the use of the word “weight” after the word “accept” means that his Honour clearly meant “accept that the words were said” rather than “accept them as truth”.

It would be different, we would submit, if his Honour had said, if the answers that – sorry, if that first sentence had read, he gave answers which you might view as – or if he gave answers which unequivocally demonstrate his innocence, if you accept them, if it had read that way, there would be no need to talk about weight, but he did not and so the reference to weight does not, we submit, mean that his Honour was to be taken as saying, accept that he said.

Likewise, we do note that the introductory sentence at line 14 is expressed in the conditional, that is to say, you might view those answers as indicating his innocence.  There was still the question of weight to be considered in those circumstances.

We note the use of the word “innocence”.  The whole purpose of directions was to assist the jury in arriving at its verdict.  We make the point that there is no such verdict as “innocent”.  We further make the point that his Honour, in the last sentence of the paragraph – which spans line 15 – refers to the fact that the answers:

have not been tested by cross‑examination –

The process of testing by cross‑examination can have little significance if the question was whether or not they were said.  The reference to testing by cross‑examination is meaningful only if the word “accept” is taken to mean accept the truth of them.  That, we submit, is an important indication that the meaning that might have been attributed to that word was accept as true, agree with, or something along those lines. 

That is where we come back, really, to where we began.  I am sorry – there is another point and that is the reference to weight is something which compounds the mischief which we say was present because the very concept of weight feeds into the proposition that the whole process might have been a balancing act rather than one which required proof beyond reasonable doubt.

We do come back to the beginning and the one good thing about parsing over this section of the summing‑up is that no matter how long we look at it, nowhere does it refer to “reasonable doubt”.  Nowhere does it link the effect of the appellant’s exculpatory answers with the concept of reasonable doubt.  Nowhere, we submit, does it disclose discharge of the need for certainty about the onus.  But we make the point that we make in our written submissions that even as we listen to this argument there is an air of unreality about it because the question is – ought to be, we submit – was there a reasonable possibility that the jury listening to this for the first time heard the word “accept” and gave to it the meaning that they would ordinarily give to it.  If there is a reasonable possibility of that then, we submit, there is a consequence and that is that the appellant’s case has not been given the consideration it deserved according to the onus. 

BELL J:   Immediately before this topic the trial judge gave a direction of the kind discussed in MFA drawing to their attention that if they had a doubt about the credibility and reliability of the complainant’s evidence in relation to one count that was a matter they could take into account in determining whether they were satisfied beyond reasonable doubt of the reliability and credibility of her evidence on the other count.  So, before this very topic in which you complain of the absence of directions about the onus and standard of proof, those two matters were the subject of directions which one might think serve to bring home to the jury that the obligation was on the prosecution to prove its case beyond reasonable doubt. 

MR CALLAGHAN:   In respect of the way in which the complainant’s evidence was treated, yes, it did nothing to bring home to the jury the way in which they had to treat the significance of the appellant’s exculpatory answers.  It is a discrete topic with no issue with the direction that was given in that context but there is no reason to suppose that it had any flow‑on effect to the consideration of the appellant’s version.  It was confined in its scope to consideration of the complainant’s evidence.

The point is perhaps relevant, though, in light of some of the submissions that have been foreshadowed by the respondent in the outline of oral submissions because in that document the respondent has imputed significance to the fact that there were differing verdicts on count one and count two and submits, as I understand it, that that is an indication that the jury did understand the directions and the obligations that were on it.

To that we would submit simply this, that the verdicts are inscrutable.  They were arrived at at the end of a long process and that is of course why we submit that the process leading up to the verdict has to be unimpeachable.  We do not know, for example, whether the appellant’s account was discarded early in deliberations on the basis of a preference for the complainant’s version and without proper analysis of its place in the scheme of things if the onus was being applied properly.

We cannot, in our submission, impute any meaning to the differential verdicts insofar as any inference about what the jury understood in terms of the onus of proof.  We do know only really what they announced at one stage which is that they were not going to reach a verdict on count two that there were implacably opposed views on either side.

BELL J:   If it is inscrutable, Mr Callaghan, it is inscrutable.

MR CALLAGHAN:   I am not attempting to say anything other than that clearly it was not – given that the proviso has been abandoned, I probably do not need to pursue that, but that is so.

The final word, I suppose, on the question of the use of “accept” and if we are going to start transplanting its meaning from one part of the summing‑up to another, on the page preceding that, page 9, at lines 12, 13, 17 and so on, the word “accept” is used in accordance with its commonly understood meaning.  We would say that means that, when it is used without “more”, without the qualifications that were added at page 10, then it would have been understood by the jury as it would ordinarily be understood.  Those are our submissions, unless there was anything in particular which the Court ‑ ‑ ‑

KIEFEL CJ:   Yes, thank you, Mr Callaghan.  Yes, Mr Byrne.  Mr Byrne, the Court will not be having its morning break this morning.

MR BYRNE:   I am indebted, thank you.  Your Honours, there was no request for what is being called, imperfectly, but for the sake of convenience, the Liberato direction.  There was no request for redirection on the use of the phrase “except then” in terms of the exculpatory portions of the interview and there was no request for redirection on the use of the term “innocence”.  It is trite to observe that the onus falls on the appellant to demonstrate that he has lost the fair chance of an acquittal because the direction was not given.  We have accepted that once evidence is admitted it needs to be dealt with. 

Now, whether that is by way of a Liberato‑style direction or not will depend on the circumstances of the individual matter.  We do not suggest that evidence coming in by way of an interview with police is to be treated in any particular different way.  It has to be dealt with and the jury have to be told how to deal with it.  But – and I have already just repeated myself – it depends on the circumstances of the individual matter. 

The issue of the bank teller giving identification evidence as opposed to an account from a defendant may or may not raise that need because there will usually be at least some other evidence that touches upon the issue, and here there was some other evidence.  There was the DNA evidence which I hasten to recognise was very weak evidence going towards identification of the appellant.  There was ‑ ‑ ‑

NETTLE J:   Which was the DNA which implicated the appellant?

MR BYRNE:   There was a mixed profile ‑ ‑ ‑

NETTLE J:   Three contributors, none of which were him.

MR BYRNE:   Three contributors.  One was him on both the perianal swab and a sampling of the underwear.

NETTLE J:   One was him ‑ ‑ ‑

MR BYRNE:   One was him, very weak; one was at five times more likely to be him than someone else, and the other at three times.

NETTLE J:   Three times, which she said was insignificant.

MR BYRNE:   Yes, and that is why I hasten to say it is very weak, but it stands in contrast to him being excluded as well.  Secondly, there is, if accepted by the jury, evidence of distressed condition and there is undoubted evidence of opportunity, which may not arise in the circumstance of the bank teller and the denial, which is all just a very longwinded way of suggesting that it will not always be required, but it may be, and President Buss in the Western Australian Court of Appeal in RMD had suggested the opportunity when it is required.  That has been touched on in discussion between my learned friend and Justice Gordon.

I simply otherwise note that there is no issue taken with that proposition by the appellant at paragraph 27, footnote 19, and a significant number of cases have been listed which are consistent with the proposition that one must look at all of the circumstances.  Although not determinative, may I nonetheless ask the Court to consider the factual circumstances in the trial issues in Liberato and ‑ ‑ ‑

GORDON J:   Just before you move away from the facts of this case, could you identify for me where you think that the exculpatory answers that potentially might have been used by the appellant were addressed by the trial judge in the direction?

MR BYRNE:   Subject to being corrected by Mr McCarthy, I think the passage is at page 11 – the impugned passage, if I could say that.

GORDON J:   Thank you very much.

MR BYRNE:   I do not want to labour the facts in Liberato because it is not decisive.  It is at tab 9 of the joint book of authorities.  But can I touch on it to illustrate what prompted Justice Brennan and, indeed, Justice Deane to make the obiter comments that they did.  There were five men charged on a total of 11 counts of rape of the one woman and, importantly, one of those men was a man named Sekulic.  He succeeded in his appeal to the Court of Criminal Appeal; the other four did not.  Each of the 11 counts, unsurprisingly, represented an individual act of rape but, importantly only one defendant was charged in each count.  The issue was consent and the associated issue of the state of mind.

Justice Brennan, at page 512 of the judgment, which is at page 117 of the first volume of the joint application book, noted that there were two events in the complainant’s account which might have cast doubt on her assertion that the acts of penetration occurred without her consent.  The first was, as I read it, an act of oral intercourse by one of the defendants on her, which was done for the purpose of exciting that defendant and permitted to be done for that purpose.  The other were two separate acts of sexual intercourse with the man Sekulic, during which the complainant assumed a dominant physical position on each occasion and on the second occasion, she admitted that she had said words to the effect:

‘I am doing this because I like you’.”

The jury were directed on three occasions, and I refer here to joint application book, pages 119 to 120, pages 514 to 515 of the judgment, that the case boiled down to “Who do you believe” – words to that effect.  The trial judge in redirections attempted to rectify those misdirections, but it was considered insufficient.  Now, in light of that, Justice Brennan’s comments were made in circumstances where the complainant’s evidence alone was sufficient to cast doubt on at least some but in reality all of the assertions of a lack of actual consent, which then fed into the issue of the guilty mind.

Given that they had convicted Sekulic of those last two acts of sexual intercourse in those very circumstances which suggested strongly act of consent that there was a real risk or, if I may adopt the terminology your Honour Justice Bell spoke of in terms of Bromley, a “perceptible risk” of a miscarriage, that the jury had simply discounted the multiple versions, sworn versions by the defendants, and convicted regardless of looking at the complainant’s account.  It was those particular circumstances that gave rise to those observations.

Our submission is that there was reason for the jury, looking at the complainant’s evidence alone to acquit on count 1 – they did acquit on that, of course, and I will come back to that in more detail.  But the jury in this matter were at no stage, as is acknowledged by my learned friend, Mr Callaghan, told that it boiled down to a choice between who they believed.  Certainly, issue was taken with the use of the words “accept” and “innocence” and I will come to that in more detail.  But there is nothing of that stark choice placed before the jury.  It is also not the stark choice that the jury were presented with in Murray.  Mr Callaghan spoke of a similar issue arising.  Can I come to that later as well. 

It seems to be common ground between the parties that a Liberato direction is not mandated ‑ it depends on the circumstances ‑ but one of the concerns of Justice Brennan was exemplified in his observation, at page 515 of the Liberato judgment:

it is commonplace for a judge to invite a jury to consider the question:  who is to be believed?

Some 17 years later, that style of direction was clearly disapproved by this Court in Murray v The Queen (2002) 211 CLR 193. That is at tab 14 of the joint book of authorities. May I take your Honours to paragraph 23 on page 268 of the joint book in the judgment of Justice Gaudron, over the page to 269. I will not read it, it is there, and clearly indicates that such directions should not be given.

On a similar vein, may I ask the Court to go to paragraph 57 at pages 280 over to 281 of the joint application book.  Finally, at page 298 in the judgment of Justice Callinan in paragraph 132, his Honour respectfully adopted the observations of Justice McPherson in the appeal below which are again to the same effect.  In particular, it is the first paragraph of that quoted passage that I would ask your Honours to read.

Your Honours, it is our submission that at least since 2002 such a direction is no longer common place, as Justice Brennan observed.  We go further and submit that it is in fact very rare that such a direction would be given.  If it is necessary to obtain obiter support for such an observation, could I ask the Court to go to Johnson v Western Australia, at tab 8 of the joint book of authorities, (2008) 186 A Crim R 531, particularly at page 535, paragraph 14, the second sentence.

If our submission on this point is accepted, we submit the consequence of that is that the possibility of impermissible reasoning is greatly reduced and the fundamental need, as it was expressed in – sorry, can I withdraw that.  His Honour Justice Brennan did not speak of the fundamental need but the fundamental foundation for the direction that Justice Brennan spoke of in mandatory terms does not exist.  That does not take away from the need to consider the matter on its own issues but we do note that there has been a shift in time.

BELL J:   Mr Byrne, the Victorian Court of Appeal, in a decision of Cordell [2009] VSCA 128, suggested that:

a Liberato direction is required when the jury has been left with the impression that they must believe the accused’s evidence in order to have reasonable doubt.

Do you have anything to say about that proposition?

MR BYRNE:   I am not familiar with the case but, having heard that for the first time, we embrace it.  It comes back – and, again, I do not want to keep stealing your Honour’s words – but it comes back to that perceptible or a real tangible risk of a miscarriage of justice.  To finish that point off, of course we say, in this case, it is not that.

BELL J:   Yes.

MR BYRNE:   The authorities speak generally of a Liberato direction.  Perhaps, strictly, it should be a Liberato‑style direction which is developed over time.  If your Honours think I am being semantic there, it would not be the first time I have been accused of it.  But, the simple fact is that when confronted with the argument in the Court of Appeal, the court there decided, in part – and I emphasise, in part – that it was not required because it was not an oath‑on‑oath case, as was Liberato.  Nonetheless, in the leading judgment of Justice Gotterson, his Honour also went on to look at whether there was otherwise a miscarriage of justice.  That is really how the argument in this matter developed in the special leave application and why we had not taken issue with the application to amend the grounds of appeal. 

So, strictly, his Honour was correct but, more broadly, one must look at all of the directions.  For the sake of completing that submission, the broader approach is found at application book 46, paragraph [43].  This jury was correctly directed as to the onus and standard of proof on five occasions and during his Honour’s course of reminding the jury of counsel’s submissions, there were a further four occasions where he reminded the jury.  This is in the course of what was a short – dare I say – concise summing‑up. 

I should say this – and I should have raised this at the start – in paragraph 22 of our submissions, at footnote 18, those occasions are listed.  I do not want to throw blame – pass myself off – I did not author the document so I cannot explain why but they are one page out.  So, where it refers to application book 10 – sorry, appeal book 10 – it should be appeal book 9.  I just simply raise that for completeness. 

Could I take your Honours to one particular example of that at appeal book 15?  At lines 14 to 26, his Honour interrupted the course of reminding the jury about Crown counsel’s address at line 14 and gave a direction around the use of “a motive to lie” which had been suggested in the course of counsel’s address.  So, there is some analogy here where the jury are reminded that if they do not accept something that has been put to them on behalf of the defendant they must, nonetheless, go back to look at the complainant’s evidence.  I will not dwell on it.  I simply raise it because it is out of the course of the usual format of the directions. 

We submit there is no reason to think the jury did not follow the directions that they were given and we will, once I have dealt with these issues of the use of “innocence” and the words “if you accept them” attempt to illustrate that there is no real risk of a miscarriage.

Can I turn to the use of the word “innocence” at appeal book page 11.  We effectively adopt the reasoning of Justice Gotterson at appeal book 46, paragraph [43].  The word “innocence” is a descriptive word, and in fact it very accurately states the effect of the appellant’s account to police.  It stands in contrast to the concept of guilt, and in that sense is synonymous with the words “not guilty.”  It would, we submit, have inevitably been understood in that way.  We also note that it is consistent with the use of the phrase “the presumption of innocence” of which the jury were directed at appeal book 8, line 36.  There is no issue taken with that phraseology.

It stands in contrast to guilt, and the jury would have accepted it that way.  Can I turn then to the issue of the use of the words “if you accept them” in relation to possible exculpatory provisions – provisions, I beg your pardon, I have just started reading it like a legislation – passages of the interview.

Our first and primary position is to effectively adopt the reasoning of Justice Gotterson at appeal book 46, paragraph [44].  In the course of the summing‑up, the trial judge set out a two‑step process commencing at page 14.  I beg your pardon – yes, page 10, I beg your pardon, your Honours, commencing at line 40.

He set out a two‑step process.  One was to ascertain whether anything was said.  I pause here to note that whilst it is put against us that there was no suggestion that there was any difficulty in understanding things said, a perusal of the transcript, which is found in the appellant’s further material, shows there are a number of indistinct passages written.  That is not determinative, but nonetheless.

The second part was to draw a conclusion as to truth and accuracy.  Notably, in setting out that two‑step process, the word “accept” was only used in the paragraph dealing with an acceptance that the defendant said such things.  The second part, dealing with truth and accuracy, was reaching a conclusion.  And the next time the word “accept” was used was in the impugned passage.

We submit that if the words “if you accept them” had been meant to direct the jury in the event of their acceptance of the account as true and accurate, then the words immediately following, namely:

and to give them whatever weight you think appropriate.  Bearing in mind, of course, that they have not been tested by cross-examination ‑

have no work to do because otherwise the evidence had already been accepted.  We submit the only manner in which the words following, that I have just quoted, can be given any real meaning, is if the words “you accept them” means, in effect, if you accept they were said. 

Philosophically, and I do not mean to be trivial, but philosophically anything is possible.  That is especially so when a version of events comes from a person who is said to be intricately involved in the matter the subject of the questioning.  Because anything is possible, it then means that the first step for the jury is to determine if they accept it was said and then go to the second step of attributing weight to determine whether it is accepted.  If one were to draw a scale ‑ and I do not suggest this is complete ‑ but from fanciful through to absolute truth, it is that process of attributing weight which decides where it falls on the scale.

So, it is for those reasons that we adopt the reasoning of Justice Gotterson.  It is said against us that if there was a reasonable possibility that they considered – they the jury considered that those words meant to accept they were true and accurate – I have led into that poorly, but in the situation where it is possible the jury considered it that way, it simply could not have occurred.  Even doing that, thinking this is reasonably possible or there might be a reasonable possibility this is true and accurate, there has already been an attribution of weight.  So, for those reasons, the jury could only have understood “accept them” as meaning “accept that they were said”. 

Nonetheless, we have heard what has been said against us and if this Court accepts that there is a fair chance that it was taken in the way suggested, we make these observations.  The word, unlike necessarily in a statute and without parsing through the summing‑up, in its ordinary meaning stands simply in contrast to the concept of rejection.  That does not, in itself, impose any onus on the defendant whatsoever.  The jury were still, albeit we have primarily said redundantly, but the jury were still directed to afford those passages whatever weight they thought appropriate and must do so in light of the other directions as to the onus and standard of proof.  There is no risk of miscarriage.

Very briefly, can I touch on two further matters?  One was the comparison made by my learned friend in this case against Murray v The Queen which I have already taken the Court to, at tab 9 of the joint book of authorities.  Could I ask the Court to go to paragraph 56 where the directions are, in fact, set out, that is at page 279.  I should say in the joint judgment of Justices Gummow and Hayne.

Your Honours will see there that the jury were, I think on three occasions, but were presented with an option, it is one or the other.  That is not this case.  Here they were told on any view of the summing‑up to give what weight they think appropriate to the evidence in light of all of the other correct directions with which no issue has been taken.  So, where it is submitted orally today that – and I do not pretend to quote my learned friend – there was a similar issue in Murray, we say it is a very different issue in Murray.

Finally, can I touch upon the issue of the differing verdicts in this matter which we say point to the fact both that the jury did as they were required to do and that there is no perceptible risk of miscarriage.  We do this recognising that we will never truly know the reason for the acquittal on count 1, but we do submit that there is a reason that appears on the face of the material which strongly suggests that they have done that which they should.

The easiest passage to take the Court to is in the judgment below at appeal book 38 and 39 where Justice Gotterson in paragraphs [13] and [14] sets out excerpts of evidence from the complainant alone.  At about line 37 on page 38 of the appeal book, the complainant commences testifying about the first occasion of digital penetration.  At about line 44 she said:

I was still asleep, I wasn’t completely coherent just yet.

She said but she groaned to make a noise to communicate and then the last sentence in that paragraph:

And I was just trying to wake myself up, trying to bring myself completely conscious to comprehend what was going on.

Over the page on page 39 of the appeal book she spoke of everything stopping.  That is the end of count 1.  She said:

I was laying there by that stage conscious – very still, trying to comprehend what I thought I had just felt.  And then it started again.

She described the digital penetration occurring.  We emphasise the concept of not being completely coherent and trying to bring herself completely conscious to comprehend what was going on.  There is no such suggestion in respect of count 2.  Paragraph [14] below it deals with the cross‑examination.  Talking about count 1 at about line 27:

I was slightly unconscious and not quite aware at that point in time as to what was going on.

She spoke of her groaning by way of communication and at about line 36:

I was still partially asleep so, at that point, it was a bit difficult for me to comprehend what was going on.

At line 41 she spoke of it stopping – sorry, she spoke of what happened after it stopped, therefore impliedly it did stop:

I became fully coherent.  I lay there coherent trying to understand what I thought I had just felt.  And then – at which it started again.

We submit that is an indication that she had achieved a state of “full coherence”, to adopt her words, before the penetration of count 2, and that is underlined by the following words:

By that point, I was completely awake, and I got up, and I said that. 

Redirections were sought by the jury and are contained in the appellant’s supplementary further material.  We particularly observe that a -the complainant’s evidence alone had been reread.  We recognise that the interview with the appellant had been taken into the jury room.  We do not suggest otherwise.  But the complainant’s evidence only reread initially, then a Black direction at page 38, then a request for some more evidence but the verdict on count 1 – we submit that is strongly suggestive that the jury have looked at the complainant’s evidence.

There was, we can ascertain, no discernible reason for the jury to have rejected the denials of guilt in respect of count 2 and yet have accepted them in respect of count 1.  Our submission is that when looks at that – I should not say “glitch” – but that aspect of the evidence in count 1, it strongly points to the fact the jury had done the task they were asked to do.

We also particularly draw to the Court’s attention that an alternative verdict of indecent assault was not left for the jury on count 1 and so the failure to return a verdict on that says nothing.  As I foreshadowed, we abandon the proviso and they are our submissions, unless there is any particular matter I can assist with.

KIEFEL CJ:   Thank you, Mr Byrne.  Do you have anything in reply, Mr Callaghan?

MR CALLAGHAN:   Four brief points, if it please the Court.  Can I deal first with the concept of the DNA evidence.  The relevant evidence, we would suggest, appears at page 68 of the appellant’s further materials and is dealt with in the summing‑up at pages 15 and 16, I think, of the core appeal book only in the context of reference to counsel’s addresses, the Crown Prosecutor’s address being one in which, at page 15, line 34, she referred only to the lack of DNA evidence.  In other words, we submit that the DNA evidence did nothing at all to change the character of the trial, as we have characterised it. 

The second point relates to the case that your Honour Justice Bell identified of Cordell.  We would say, of course, that the impression in this case was left that the jury needed to accept the appellant’s version of events.  In Cordell I think the word “belief” was used, but we would say that the mischief identified there was very much present here because of the passage that we have already considered.

BELL J:   Yes, I understand.

MR CALLAGHAN:    There was sought to import some relevance to the directions given about motive to lie.  Again we would say they are in the same category as the directions which might have derived from MFA or Markuleski in as much as they are related and could be compartmentalised as relating only to the complainant’s evidence and did not touch upon the version given by the appellant.

Finally, it was submitted, as I heard it, that even if the word “accept” in the part of the summing‑up to which so much consideration has been given was understood to mean accept that he said those things – sorry, even if not understood to mean that, might still have been allowable in the

context.  Well, we go no further – we submit need to go no further than to refer to Murray at page 213 in which it was noted that such a term was apt to mislead and to note also that correctly framing the test elsewhere in a summing‑up will not save the use of such a word which, as we have already submitted, is something which is viewed with such sensitivity that it formed the basis of a successful appeal in that case, notwithstanding the absence of a request for redirections or even making it a ground of appeal in the Court of Appeal. If it please the Court.

KIEFEL CJ:   Thank you, Mr Callaghan.  The Court reserves its decision in this matter and adjourns to 10.30 am tomorrow.

AT 11.29 AM THE MATTER WAS ADJOURNED