Franklin v The Queen

[1993] HCATrans 19

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S66 of 1992

B e t w e e n -

KERRIE ANNE FRANKLIN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

Franklin 11/2/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 FEBRUARY 1993, AT 12.15 PM

Copyright in the High Court of Australia

MR G. NICHOLSON, QC: If Your Honours please, I appear with my learned friend, MR J.C. NICHOLSON. (instructed

by John Bettens & Co)

MR R.O. BLANCH, QC:  I appear for the Crown, with my learned

friend, MR T.R. HOYLE, if Your Honours please.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

BRENNAN J: Yes, Mr Nicholson?

MR NICHOLSON:  Thank you, Your Honour. Your Honours, the

matter involves a discrete question, one that

occurs in practice with great frequency, and that

is the circumstances in which an application for a

separate trial ought to be acceded to.

In essence, the applicant seeks to argue that

there has been a view in the authorities and in

practice that there is an entitlement in the jury -

and we are dealing with a jury case here - to be

appraised of the whole story in cases where there

is more than one accused who is actually involved.

The circumstances arose in this case, as is

not uncommon, where co-accused sought to attribute

blame to each other, and the Crown presents its

case against each co-accused before the same jury

in the same trial.

The applicant seeks to develop the argument,

in due course, that what the jury, and only what

the jury must consider, is the evidence admissible

against each co-accused, and that invitations to go

beyond that or procedures which take the jury
beyond that role cause or run the risk of causing

impermissible prejudice to the co-accused in

question.

The starting point would be the decision of

this Court in the matter of Darby where the

prospect of both conspirators being convicted or

acquitted was dispensed with, and the rationale

being that the evidence against one may may be
evidence against the other, and then assisted to

look at individually the case based on the evidence

against each accused was the subject of comment in

joint trials.

In the case of Guldur, the Court of Criminal

Appeal in this State held that although Darby was a

conspiracy case, the same reasoning of this Court

would apply in substantive crimes. Subsequently, a

number of decisions, in particular of, now,

Chief Judge of Common Law, then, Justice Hunt in

Farrell v Cotton took the Darby approach to the

Franklin 2 11/2/93

evidence admissible against separate accused in a

joint trial and noting the courts reference to

Guimond, the Canadian case, sought to put to one side the notion of the whole story as being a relevant feature in determining such applications.

What the applicant in this case seeks to do is

to suggest that by itself, the whole story

approach, takes the matter nowhere; that there is

undoubtedly an interest in the administration of

justice in the hearing of joint trials, for obvious

reasons of expense and efficiency and strain on

witnesses, but that when in circumstances a

measured degree of prejudice is expected to or in

fact arises, then separate trials will be ordered,

and that references to the whole story approach are

somewhat misleading or should be put to one side.

It has been some time - - -

BRENNAN J: There is no novelty in these propositions, is

there? It is for the trial judge to determine, in the light of desirability of ensuring consistency, expedition, want of strain of witnesses, et cetera,

on the one hand, and the risk of the admission of inadmissible evidence in one case against another

accused on the other, whether a separate trial

should be ordered.

MR NICHOLSON:  I think there is a degree of novelty in the

proposition, Your Honour, and it is this: if I

could take Your Honours to page 48 of the

application book where in the Court of Criminal

Appeal at about line 7 sets out and then adopts at line 17 or thereabouts, an approach which I would

suggest goes in a different direction than I have
just outlined by suggesting that there is some
value in a jury looking outside the evidence
admissible against one person by considering all of

the evidence in front of them, albeit, it could not

have been put before them in respect of one of the

accused had the trial proceed separately.

BRENNAN J: That proposition has been dealt with by this

Court in De Jesus' case.

MR NICHOLSON:  De Jesus' case, I think, Your Honours, was a

case of severance of accounts rather than separate

trials - rather than severance of accused.

BRENNAN J:  I rather thought that it was in that case.

Perhaps my recollection is playing me false, but I

thought it was in that case where the question was
the admissibility on a joint trial of evidence

which is not otherwise admissible against an

accused. Perhaps my recollection serves me wrong.

MR NICHOLSON:  Your Honours -

Franklin 3 11/2/93

BRENNAN J:  However, the proposition is quite clear, is it

not, that the joint trial mechanism is not a means
by which inadmissible evidence is to be got in

against an accused, and if there is a risk that the

direction by the trial judge cannot safeguard one

accused against the effect of evidence which is

admissible only against the co-accused, then there

is a strong case made for separating the trials.	I
would not have thought there was any doubt about
that, but if there is, perhaps you can show us
where the doubt arises.

MR NICHOLSON:  Your Honours, in the words to which I would

draw Your Honours attention on page 48 of the

application book, the words occur:

the interests of justice ordinarily require

that they be tried together.

Now, in so far as they relate to the prompt and

efficient dispatch of business and the matters to

which I referred earlier, I do not seek to address

that issue. But, what is set out in that passage
as descriptive of the interest of justice referred

to in this case are these words:

It would usually be scandalous and a serious

blot on the administration of justice for the

ordering of separate trials in such cases

resulting in inconsistent verdicts ... The fact

that one accused alleges that he was coerced

by the other so far from being a reason for

separating the trials will generally be a

reason for adhering to a joint trial.

Now, there is an invitation to the proposition that it is better for the jury to hear that allegation

by one accused against the other.	Now, that is not
evidence, the one against the other.

BRENNAN J:	Why is it not?
MR NICHOLSON: Well, a dock statement by one accused, making

that assertion against another accused, is not

evidence against the other accused.

BRENNAN J: Not if it is a dock statement.

MR NICHOLSON: Certainly, as was the case here. Now, in the

circumstances then - and the court says, "Those

remarks have a very close application to the

present case." The court is here saying - - -

DEANE J: That paragraph there, that is quoted is wrong, in

that it seems to assert that two verdicts of

not guilty are inconsistent.

Franklin 4 11/2/93

MR NICHOLSON: Quite. And, of course, as Your Honour has

readily taken the point, it is not an assumption of

innocence, it is a finding of insufficient evidence

to establish guilt beyond reasonable doubt, and

that is right at the very heart of it. They are

not inconsistent, necessarily, when one looks at

the real meaning of a not guilty verdict, and I am

indebted to Your Honour.

The invitation and endorsement at page 48

DEANE J: But your problem is that the decision in the

present case turned on the conclusion that there

was no miscarriage of justice.

MR NICHOLSON: Well, would Your Honours prefer me to address

that matter directly?

BRENNAN J:  No.

MR NICHOLSON: Well, if I just stay with this and then I

will turn to it, Your Honour.

The invitation here at page 48 is to a clear

proposition that it is proper for a jury to listen

to one accused saying what the other one did or did

not do to him, or attributing propensity or bad

character to the other accused, when coming to a

conclusion as to guilt of that accused. The words

are fairly clear, "a serious blot" on the

administration of justice, and those words are

adopted in this case. It is that proposition with

which the applicant cavils.

Now, in this case, there was advanced

ultimately - somewhat confused, but ultimately

advanced against the applicant, a case consistent
with an out-of-court statement by the co-accused to

the effect that the applicant took the deceased to

certain premises where the co-accused killed the

deceased.

There was a denial and a different position

put by the applicant who volunteered to the police

the news of the death and the whereabouts of the

body.

During the trial, in a dock statement, that

out-of-court statement was disavowed by the co-

accused, and the co-accused then made the assertion

that the death was occasioned by the applicant. He
also made various assertions of propensity and

duress.

Of course, at the conclusion of the case, the

defence for the co-accused addressed the jury on

Franklin 11/2/93

the proposition that the dock statement of the co-

accused was such - was true, and it would have to follow that he addressed the jury in terms of the

dock statement that the applicant was in fact the

person who caused the death, actually physically

caused the death. As my friend reminds me, he

cross-examined strenuously to that effect.

At the close of the trial, the applicant was

left in the position of having to answer the case

presented by the Crown that it was she who lured or

took the deceased to premises where the co-accused

administered the death, caused the death, and for

that purpose, or at least the purpose of grievous

bodily harm on the one hand, and on the other hand,

had to be present whilst the co-accused addressed

the jury that indeed it was she that murdered the

deceased. In effect, she had two cases to answer

in the eyes of the jury.

The evidence against the applicant was

circumstantial with the exception of statements

said by her to various, I will call then

generically, health workers, during a period when

she was undergoing drug treatment, counselling,

rehabilitation.

Now, putting aside that section of the

evidence for the moment, she had a circumstantial

case to answer which coincided with statements by

the co-accused to the police out of court, which he

disavowed in court, blaming her, in fact, for the

death. So that, with the exception of the drug

rehabilitation type related evidence, she was

confronted with an inadmissible statement against
her by the co-accused to the police, to the effect

that supported the Crown case against her, where

there was not evidence.

In addition to that, when he changed his story in court, she was left with, effectively, two cases

to answer: that she was the murderess, as the co-

accused would have it, or, as the Crown would have	it, that she took the deceased to the premises for
the co-accused to kill or cause grievous bodily
harm.

That combination of features elevated the

strength of the case against her and placed her in

an invidious position. She was cross-examined on

issues, not relied on by the Crown, and those were

the subject-matters addressed to the jury seeking

to blame her by the co-accused.

There was also evidence of a prior criminal

history put into the dock statement of the

co-accused, alleging her - which is factually

Franklin 6 11/2/93

accurate - conviction of participation in an armed

robbery. That would not have been admissible

against her had it been raised by the Crown. That

was not to be rebutted by the Crown in the case
against the co-accused, because it was factually

accurate, it was a matter he sought to rely on.

There was then cross-examination of her as to

that issue of the previous armed robbery,

cross-examination by the Crown. And there was no

objection to that, I have to say, by counsel

appearing at the trial, but the reason is quite

clear. It was introduced prejudicially by the

co-accused, and then cross-examined by the Crown

with his consent to show that she was not the

principal offender. It was an armed robbery

involving a knife, but that she was, in fact, if

you will, the more passive of the two, a

stander-by, an accomplice, whilst it took place.

Of course that, unfortunately, arose as a

result of the dock statement, and it is precisely

that circumstance of being the less active of the

two which was the Crown case against her in the

death. It was not the co-accused's case, if you
like, against her, but it was the Crown case

against her. That it was the co-accused who had

caused the death, and she was the passive of the

two, as it were, as originally stated out of court

by the co-accused to the police. So that the level

of prejudice is repeated in an effort to play down

her role in that prior criminal incident introduced

in a dock statement but heard by the jury, whereas

cross-examination by the Crown of her, which

portrays her in a similar role, being the less

active of the two, as occurred in the instance of

this murder, according to the Crown case.

To return to the issue concerned where special

leave is sought: special leave is sought on a

practical problem which arises frequently in the

courts in trials where the distinction between the

whole story as set out in this case, and referred

to at page 48 - and one can go back into the trial

judges original judgment on the issue to a similar

effect - whether that should now be put to one side

and issues of public efficiency and administration

of justice, strain on witnesses, to one side, the prime consideration being - subject of directions

to the jury, or rather decisions - I will withdraw

that - decisions on applications for separate
trials, be whether there is a real risk that this

level of prejudice may arise. There is no comfort

to be had by any jury being invited or being put in

a position without invitation, to listen to

non-evidential material of a prejudicial nature,

Franklin 11/2/93

which was clearly foreseeable at the start of the

trial.

That is the issue, Your Honours, that we seek

to, if granted leave, advocate. It is seeking

guidance on an everyday repeating problem, and an

abandonment specifically of the whole story

principle, if there be such a thing, and a

following of the line of authorities referred to as Farrell v Cotton and going through to Middis, where

the whole story has simply no effect at all. It is

not a relevant consideration, and far from being a

blot on justice if the whole story is not heard, if

it is ·not evidence, and it is prejudicial to argue

that it is a blot on criminal justice if it is

heard, that we are really dealing with what is

evidence and seeking to avoid the fiction that,

having paraded the whole story intentionally in

front of the jury, they be simply directed to put

it to one side. No doubt there will be degrees of

prejudice which are at the lower end in which

discretionary decisions will take a view they can

be cured, but where there is a real risk, as in

this case, that it cannot be, and where the accused, the applicant here, is placed in a position of two cases to answer and prejudice over

and above the case that she was called upon to

answer by the Crown, a separate trial should have

been ordered and should, in the future the question

arise as to separate trials, the whole issue, the

whole story approach be abandoned as a relevant

feature where it is clearly perceivable that

prejudice of a definite nature will be occasioned

to the applicant or accused.

Your Honour, my friend reminds me that there

is a dearth of authority, an absence of authority,

on the very issue that I seek to raise and that its

presence in the application book in that context

demonstrates the need for guidance from this Court

in declaring the law and how it should be applied,

after Darby, in a substantive crime with joint -

trials. Thank you, Your Honours.

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

you, Mr Blanch.

Although consistency in the verdicts to be

returned against accused who are jointly charged is

a factor relevant to the exercise of a discretion

to order separate trials, another factor is the

risk that evidence admissible against one accused

only might wrongly be used by the jury against

another accused. When an application for separate

trials is refused and an accused is convicted, it

is open to that accused to rely on appeal upon any

event which has led to a miscarriage of justice.

Franklin 11/2/93

But if no miscarriage of justice has occurred, the

appeal will be dismissed.

In the present case, the Court of Criminal

Appeal was satisfied that there was no miscarriage

of justice. In our view, the Court of Criminal

Appeal was right in reaching this conclusion.

Accordingly, special leave will be refused.

AT 12.44 PM THE MATTER WAS ADJOURNED SINE DIE

11/2/93

Franklin 9