GBF v The Queen

[2020] HCATrans 140

[2020] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B18 of 2020

B e t w e e n -

GBF

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON THURSDAY, 10 SEPTEMBER 2020, AT 9.45 AM

Copyright in the High Court of Australia

MR S.C. HOLT, QC:   May it please the Court, I appear with my learned friend, MR M.J. JACKSON, for the appellant.  (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC:   May it please the Court, I appear with my learned friend, MS C.N. MARCO, for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ:   Thank you.  The record will show that Justices Keane, Edelman and I are present in Brisbane, Justice Bell in Sydney and Justice Gordon in Melbourne and that the video connection is being connected through Courtroom 2 in Canberra.  Yes, Mr Holt.

MR HOLT:   Thank you, your Honour, and I think it is maybe clear to the Court, but our learned friends are present in the same room that we are also, in Brisbane.

KIEFEL CJ:   Yes, I understood that, thank you.

MR HOLT:   Thank you, your Honours.  If it please the Court and as the Court will be aware this appeal relates to things that were said by the learned trial judge to the jury during the course of directions that his Honour gave to the jury about the way in which it would approach the acceptance or not of the complainant’s evidence.  There are two matters at the outset which, in our respectful submission…..to be in any dispute as between the parties and, with respect, rightly so, and which lie at the heart of the nature of the appeal case that we make. 

The first is that what the trial judge said was wrong and permitted reasoning that it was at odds with the right to silence and the accusatorial nature of the criminal trial.  The second matter is that the risk in this particular case of such reasoning, that is reasoning at odds with the right to silence, was directed to the complainant’s evidence which was the critical evidence insofar as the Crown case was concerned and the acceptance or not of her reliability and credibility beyond reasonable doubt…..question in the case.

Our respectful submission is that those two matters being so, and in our submission they are and they appear to be agreed – they also appear to be consistent with the decision that was made by the Court of Appeal here – there was, in effect, no other option open than for this appeal to be allowed by the Court of Appeal.  The reason why it was not allowed and the error that has manifested in that result is that the Court of Appeal…..two mistakes.

The first is that it failed, with respect, to grapple with the nature of the error that was made and, secondly, in terms of the approach that it took as a matter of law, that it approached the question as a third limb issue and determined it at that point, rather than approaching it in the way that is required by the decisions of this Court in Kalbasi…..

Can I ask the Court to go please to the core appeal book at page 26, which is where what I will call the impugned statement was made by his Honour to the jury, or where it is recorded in the transcript, and it starts helpfully at line 1, and goes through the first paragraph of that section.  What can immediately be seen, if we can just focus on one or two of the elements of that which are critical to the assessment of the nature of the error and its consequences in this case, there are some matters that we wish to point out. 

The first, of course, is that it occurs in the context of what is colloquially described as a Robinson direction, that is, a direction about the need for caution in respect of the acceptance of the complainant’s evidence in this case.  Can we immediately say – and it is not an issue, of course, in this appeal, it is not taken by the Crown, but it will be obvious to the Court, a Robinson direction in this case might be thought to have been generous to the defendant – to the appellant.  I think that has to be accepted on a plain reading of it.

That, in our submission, is of no moment, because the nature of the direction simply meant that what the jury were being directed to at that point was its approach to the assessment of the credibility and reliability of the complainant.  So, in that context, the words that are spoken become really important and they start at about line 9 ‑ about line 8, where his Honour says “But, in this case”, having mentioned the way in which the complainant’s evidence needs to be scrutinised with great care:

bear in mind that she gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier. 

Those are the key words, in our respectful submission.  His Honour goes on:

It is a matter for you in assessing her credibility, but you have got to consider all of the matters that Defence addressed to you about in relation to her credit.

So, a couple of things that become immediately clear from this, is that the “it” which is being referred to in the sentence “That may make it easier” is of the acceptance or not of the complainant’s evidence – of her credibility and her reliability.  That is essential, in our respectful submission, and not really, in our submission, a matter of contention.  That is, in effect, that the “it” is the prosecution case.  And the thing which is said to make it easier, that is the acceptance of the prosecution case by way of the acceptance of the complainant’s evidence, is the absence of sworn evidence from the defendant.  That is, the exercise of the right to silence. 

Contrary to our learned friend’s submissions, our respectful submission is there is nothing ambiguous in that phrase that was used, in the context in which it was used.  It was a clear permission given by the learned trial judge, albeit a…..one, but a clear permission given to reason in a way which this Court has held, in our respectful submission, unambiguously, that other than in rare and exception Weissensteiner‑like circumstances, reasoning which is in effect unlawful, not open to a jury, by virtue of the fundamental nature of an accusatorial trial. 

So the nature of the error, if I can return to it briefly then, having taken the Court to the actual words used, is the permission of reasoning at odds with the accusatorial trial and at odds with the right to silence.  There has been something…..and one understands why, about the way one characterises that statement.  Is it a direction; is it a comment; is it an observation which would link it to one of the directions that the learned trial judge gave?  In our respectful submission, whilst those kinds of labels can be helpful in cases…..so here.  What is clear, in our submission, is that it was a statement which had legal consequences because it was a permission to reason in a certain way where that way of reasoning was entirely, in our respectful submission, at odds with the accusatorial nature of a criminal trial and a right to silence.

What is significant, in our submission, about this case is that both the Court of Appeal in the judgment of his Honour Justice  Boddice and the Crown in this Court, acknowledge the significance of the nature of the error, and that is the risk that it creates, and the risk that it creates being effectively a fundamental one when properly analysed as being an error that goes to the unlawful reasoning process which was held not to be available by this Court in Azzopardi and cases that have followed.

I should say, though it might be obvious, that no one suggests here, and nor did the Court of Appeal, that the Crown expressly disavowed any suggestion that this was a Weissensteiner case or even a…..Weissensteiner case.  Indeed, it is precisely the kind of case that this Court identified in Azzopardi as meaning that if such a permission were given to reason, then it would effectively spell – I am paraphrasing – the death of the right to silence in that way.

Can I take the Court then to the nature of the risk which the Court of Appeal identified in his Honour Justice Boddice’s reasons at core appeal book page 66, at paragraph [110].  The Court will appreciate that his Honour dealt with this ground of appeal very briefly.  It was one of a significant number of grounds of appeal and was dealt with in a few paragraphs, but the critical paragraph, in our submission, on the question of the identification of the nature and significance of the error, which is the point that I am making submissions about now, is at [110] where his Honour noted that, at paragraph (a):

No reference ought to have been made to the jury’s task being made easier ‑

And then:

Such a reference implicitly suggests the jury has been deprived of something to which there as an entitlement.  That suggestion is contrary to both the presumption of innocence and the right to silence.

Two things we would note, initially, at the outset but with respect, though, they may be obvious.  The first is that his Honour has noted, and there does not appear to be any dispute, the very thing that the jury were given permission to do could be characterised as being contrary to the presumption of innocence and the right to silence, and that is significant in terms of understanding the nature of the error here.

The second, though, is that his Honour characterises the effect of that error as being an implicit suggestion that the jury is being deprived of something to which there was an entitlement.  And, in our respectful submission, what his Honour may not have grappled with there is that, in truth, the effect of the way in which the impugned statement was made and the permission that it gave was that it permitted that reasoning to be used to accept the complainant’s evidence which was, as I have said, the entirety, in effect, of the Crown case or, at least, critical to the exceptions of the Crown case. 

One almost has the sense – and I do not want to fall into the trap of…..reasons as if they were a statute – but one almost has the sense in paragraph [110] that his Honour is characterising what occurred as something of a theoretical problem, as opposed to a practical one, with a reference being implicitly to suggest that the jury has been deprived of something to which they were not when, in truth, what was engaged here was the use of the absence of the sworn evidence of the defendant and the right to silence in the acceptance – the easier acceptance of the complainant’s evidence.

As we say, the Crown, with respect, entirely properly, at paragraph 8 of its written submissions acknowledges, in our submission, in an entirely different way, that the risk here was that the jury – I will use our learned friend’s words – “may have felt that it was open for them to reason impermissibly to more readily accept the complainant’s evidence because of the absence of sworn evidence of the appellant”.

Our submission is once that proposition is accepted, as it ought be, the appeal ought to have been allowed at that point.  Our friends, though, say instead that it was not reasonably possible in the context of this case that the risk materialised and, by doing so, of course seek to support the Court of Appeal’s reasoning in that regard.

Our respectful submission is that that next stage of reasoning, effectively the way in which both the Court of Appeal and our learned friends here seek to nonetheless maintain a conviction, even when a statement with the characteristics that are accepted by the parties has been made to a jury and the permission given in the way that it was being should, nonetheless, be upheld effectively on the basis that, well, it can have made no difference in the context of this case.

Our respectful submission is that that is at the heart of the error that the Court of Appeal made, and it is at the heart of the error that our learned friend’s submissions, with respect, continue, if they were accepted because the Court of Appeal ‑ ‑ ‑ 

EDELMAN J:   Mr Holt, that is effectively proviso reasoning, is it not?

MR HOLT:   That is precisely our point, your Honour.  So what happens here is that the Court of Appeal reason in a proviso‑like way, if I can put it that way, whilst engaging only with, on the face of it, in fact substantively only with the third limb of the common form grounds of appeal.  So what they do, effectively, is to the – what is not even, in our respectful submission, the current approach to the proviso as has been provided for by this Court in Weiss and Kalbasi and the other cases, which is effectively to identify the nature and effect of the error and then to determine by what means the conclusion is reached as to whether or not a substantial miscarriage of justice has actually occurred, instead what the Court of Appeal do is to apply, in effect, a kind of pre‑Weiss proviso test to the third limb. 

In our submission, therein lies the error because what the Court of Appeal was required to do, in our submission, was to recognise that the nature of the irregularity that this statement reflects, that it in fact is, required it to find that there was a miscarriage of justice by applying the test that this Court has set down in Kalbasi in particular, and then, if possible, to apply the proviso.  Our respectful submission is both because of the fundamental error of the nature, that is, the impacts on the accusatorial nature of the criminal trial and the fact that it also necessarily impacted on the critical factual decision that the jury had to make, which was the acceptance or not of the complainant’s evidence, there is simply no way of applying the proviso in those circumstances.

I have grappled with the question, with respect, as to whether or not it is overly semantic to say that the question of whether or not there was a lost chance of an acquittal here, the third limb stage rather than the proviso stage, whether that is semantic or substantive, but our respectful submission is that it is a substantive problem because it commences with ‑ ‑ ‑

EDELMAN J:   …..

MR HOLT:   Yes, yes, there is.  Your Honour is precisely right, and that had not occurred to me, I accept, but your Honour is of course precisely right, because if that reasoning is deployed at miscarriage stage then it is for the defendant to satisfy the court of, rather than for the Crown.  No, we accept that, and I apologise that I had not made that point previously, but your Honour is of course exactly right.

Can I put, if I may, that question to one side just for a moment – and I will come back to it in a moment, so that I can just flesh out very briefly the substantive question, regardless of the question of how the Court of Appeal sought to approach this in terms of the third limb and then the proviso; and then not the proviso, if I can put it that way - and that is the proposition that there were, because of the other directions that had been given to the jury in this case, there was in fact no prospect that the jury, as the Court of Appeal found, may have misunderstood the trial judge’s directions. 

Can I take the Court in this respect please to the core appeal book at page 67, so just one page following from where we were previously, and to paragraph [112] of his Honour Justice Boddice’s reasons.  Of course, as I have noted earlier, this ground was dealt with in very short compass and so one is seeking to read quite a lot into a relatively small number of sentences, but nonetheless these are the reasons.  The proposition is put:

there was no real possibility the jury may have misunderstood the trial judge’s directions and that the appellant was deprived of a real chance of acquittal as a consequence of the trial judge’s inappropriate observation.  There has been no miscarriage of justice from that observation.

So that must be seen as being a reference back to the submissions which are paraphrased by his Honour above at paragraph [111], but still on the same page – what I will call the “specific directions” which accorded, we accept absolutely, entirely indeed verbatim with the kinds of directions that were held to be required, the majority of this Court said in Azzopardi, in almost all cases and those directions were plainly given.

The actual directions that were given in that respect probably warrant perching on just for a moment, and they are found at core appeal book page 44, at line 14, if I could ask the Court to go briefly to that page.  No, they are not, I apologise.

BELL J:   I think they are at page 20 of the core appeal book.

MR HOLT:   Yes, I am sorry, I got caught out by the pagination, I apologise, your Honour – where the directions there were given.  The first two full paragraphs in the page encompass everything that was effectively said about that.  The first paragraph, which commences at line 4, is focusing on the fact that the complainant’s evidence was:

uncontradicted by any sworn evidence by the accused. 

Then the ameliorating directions from Azzopardi are given at 14 and following, where the judge notes effectively it:

does not constitute an admission . . . may not be used to fill gaps . . . It may not be used as a makeweight –

So on and so forth, matters the court will be well familiar with.

Now, what the learned trial judge – I am sorry, what his Honour Justice Boddice in the Court of Appeal appears to have concluded is that those directions were, having been given, there was no prospect that the jury would have been in some way influenced by the other – the impugned statements such that there was any risk they might have reasoned in accordance with it. 

In our respectful submission, that conclusion is plainly wrong and, with respect, plainly wrong because - and the answer to why it is plainly wrong comes in large measure from the approach in Azzopardi itself.  Indeed, in Azzopardi, and if I could ask the Court to go briefly to Azzopardi itself which is at page 53 of the bundle of authorities and at page 77 of the report and at paragraph 76 - at paragraph 75 itself in the judgment.

The point there in Azzopardi was made that effectively there were contradictory directions, one set of which were correct and the other of which were not, and the Court noted – the majority noted in that respect, with respect, correctly, that in that context the passage was at best confusing and contradictory of the earlier directions. 

This is not a case like Dookheea which our learned friends rely on or a case about, for example, an unbalanced summing‑up.  It is not a question of looking at words out of context to see whether overall, with some subtle examination of those words, one can discern an error.  Here, we have a statement made to the jury which gave a permission which was, on its face, plainly wrong.  Thus, the notion that that can be overcome by a contrary direction, in our respectful submission, is wrong.  The best that can happen is that one ends up with a confused jury which does not know which direction to follow. 

The only way, in our submission, that something like the impugned statement having been said that it could be correct properly is for it to be explicitly disavowed by a trial judge, that is, for it to be noted, referred to and explicitly disavowed in those circumstances and then our task would obviously be more difficult.  But this is, in essence, in our submission, the same vice as occurred in Azzopardi in that respect and our friends understandably say, well, point to authority of this Court, Dookheea in particular, where it is noted that one has to consider the summing‑up of the trial judge as a whole and, of course, that is an utterly unexceptional proposition.  The difficulty here is that, as we say, the words used, the…..given by the impugned statement was plain and wrong and the other directions can only, as a result, have led to confusion. 

There is also, though we do not – and it may be that the respondent does not particularly pick up this element of the reasoning in the Court of Appeal, but it warrants reference, in any event.  That is, Justice Boddice in the passage that I took the Court through before at paragraph [111] refers as well to the Azzopardi directions, if I can call them that, at short compass…..that the direction that the jury were – orthodox direction that the jury were free to disregard the judge’s comments.

If I could take the Court please back to the directions themselves in this regard which are – I will get it right – I am at page 14 of the core appeal book.  What his Honour says to the jury at line 23 and following is – and this, of course, was pre‑McKell:

I am, however, entitled to make such observations on the facts, on the evidence, as I think appropriate.  And if I do make such observations, I do so in an endeavour to define the issues –

and so on.  Simply says it is not:

to influence you one way or the other as to what your verdict should be.  It’s entirely a matter for you.

So the language deployed there is of observation rather than comment and observation on the evidence – on the facts on the evidence.  Then:

So what I say to you on matters of law, you must accept as correct.  If I choose to say anything about the facts, that does not bind you at all.

So the two difficulties with…..the way of somehow immunising the effects of the statement, the impugned statement, which, as have noted appears to be common ground, was wrong.  Firstly, it is the proposition that in some way the jury would have seen what the trial judge said in the impugned statement as being an observation about the facts.  The jury would need to have recognised that as such in order to attach it to this particular direction and that, in our submission, strains credulity.

The second aspect of it is that, even if they did so, where would they be left, one would ask rhetorically?  They would be left saying, well, that might have been an observation on the facts and it does not bind me, but that does not mean I am forbidden from doing it, so it does not in that sense…..jury’s reasoning process…..problem that the impugned…..creates.  It simply leaves them with the option one way or the other of deciding whether to accept it or not and…..say, in our submission, the effect of that statement was to permit reasoning which was unlawful and thus, no matter how one characterises it, as an observation or a comment or a direction or as just something said, it had that quality about it and thus gives rise to the vices to which we have referred.

Can I then take the Court to the last substantive topic that I wish to cover, which is the issue that your Honour Justice Edelman raised with me earlier, and I have given a relatively extensive preview of the…..we would respectfully invite the Court to take on this, but it is…..Court of Appeal was wrong…...the miscarriage of justice question.  The appellants have been denied a real chance of acquittal in essence because, or at its core because such an approach is inconsistent with the judgments of this Court in Weiss and, in particular, in the decision in Kalbasi v Western Australia.

It is clear, in our submission, notwithstanding the brevity of the reasons given in the Court of Appeal, that the Court of Appeal in fact did deploy miscarriage of justice reasoning, that is, it determined this appeal within a third limb of the common form provisions rather than moving to the proviso.  As your Honour Justice Edelman noted to me in a question, what they did in that sense was to deploy a form of proviso reasoning.

It will be well known to the Court, but could I take the Court please briefly to the decision in Kalbasi, of the majority in Kalbasi v Western Australia which is at page 69 of the report which is found at page 219 of the bundle of authorities that has been prepared, and in particular paragraph 12 of that decision.  As the Court well knows, Kalbasi was ultimately a judgment both in the majority judgments and in the in dissenting judgments of the minority judgments, which sought to explain again what the nature of proviso reasoning was post the decision of the Court in Weiss.  But in doing so the Court, necessarily, as it had in fact done in Weiss, had to grapple not just with the question of what a substantial miscarriage of justice is, but also the question of what a miscarriage of justice is in the third limb of the common form provision. 

And the reason for that, of course, is that historically it had been thought that there may not be much of a difference between the two for obvious reasons given the incongruence of language in the main.  And paragraph 12 is, in our respectful submission, as plain a finding as one can get, with respect.  About a third of the way through paragraph 12:

Consistently with the long tradition of the criminal law, any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the common form provision ‑

And, in essence, then, our submission is once one determines ‑ once an intermediate appellate court determines that what occurred, which is said to fall within the third limb, falls within that description, that is an irregularity or failure to comply and so on, or, as it was put in Weiss, with the failure to provide a trial according to law, then the juridical approach that must be taken then is to hold that there was a miscarriage and to deal with matters, again with the onus issue that your Honour Justice Edelman raised, with the Crown demonstrating that no substantial miscarriage of justice has actually occurred.  So, in our learned friend’s submissions in paragraph 10 of their written outline, to the effect that the reasoning was permitted, that is to deploy lost chance of acquittal reasoning at the third limb stage, in our respectful submission, is wrong, cannot survive the reasoning in Weiss and Kalbasi. 

Can we say this, there is no doubt that when one examines authorities which are referred to by our learned friends from this Court and intermediate appellate courts on Weiss and pre‑Kalbasi, there are instances where one can see the use of this kind of reasoning at the miscarriage stage, but, in our respectful submission, that occurs for two reasons which are explicable.

The first is that pre‑Weiss the nature of the phrase miscarriage of justice was forced to have more content, that is more substantive content, perhaps more akin to the ordinary meaning of those words in common parlance than is the case post‑Weiss, once there was a recognition and an explanation in Weiss of the history of the proviso doing as it did, the task of undoing the strict effect of the Exchequer rule, as it was known.

The second, of course, is that there will be miscarriages of justice grounds which require a more qualitative or substantive assessment at the point of determining whether there has been a…..The best example is incompetence of counsel because one cannot assess the question of whether counsel has been incompetent or not without asking questions about what decisions were made, what effect did they have on the trial, how did they influence the jury, those sorts of things. 

So, one can see that there are some examples where it might not be as clear as there is an error, you move on, which it will be in certain cases, but that is not this case, in our submission.  In this case, a statement to a jury which permits them to reason unlawfully on any assessment is an irregularity of the kind which this Court in Kalbasi, the majority in this Court in Kalbasi held simply meant that the third limb was satisfied.

And the difficulty here, in our respectful submission, is not semantic, as I have noted previously in these submissions, not in any sense, because it appears that ‑ and we have noted in the written outline that this does, with the greatest of respect, appear to be something which has been done on other occasions in the Queensland Court of Appeal ‑ is that the question of whether or not an error deprived an appellant of the prospect of an acquittal, or effected real impact on the prospects of an acquittal, does appear to be deployed effectively as a unitary test on the question of the third limb, that is, it appears to be the only test which is deployed in that sense.  Whereas, of course, if what we respectfully submit would have been the proper approach here, which is to go through the third limb point, recognising there had been a miscarriage, and then analyse the case on a proviso basis, what would then have happened is that the strictures of Kalbasi would need to have been followed.

With the greatest of respect, our respectful submission about Kalbasi is what it makes clear is that it is the nature and effect of the error which is the starting point in determining how the question of substantial miscarriage of justice is to be assessed at all, and that sophisticated reasoning process is entirely lost because of the error that the Court of Appeal made here by only dealing with the question on a third limb basis and only by reference to a punitory test of impact, potential impact on the prospects of an acquittal.

And so ultimately, in our respectful submission, the reasoning here effectively means that it is incongruous, in our submission, that an error of a kind that would not permit the application of the proviso does not even get to be considered in that…..because it fails the miscarriage of justice test on the third limb.  So, as we say, in our submission, it has a reasonable and genuine and substantive impact.

That then takes us, in our respectful submission, back to where I started in respect of these submissions, and we make this submission.  Regardless of whether one applies the test that his Honour applied, that is his Honour Justice Boddice applied, that is, by asking the question about potential impact on acquittal, or whether there is a different kind of materiality criterion deployed at that stage, or whether it is assessed on a proviso basis way, there are two reasons why this error, this impugned statement, this permission to reason, was one which necessarily meant that this appeal had to be allowed.

The first is that it was a fundamental error.  It was an error of a kind which was at odds with the accusatorial nature of a criminal trial and thus, in our respectful submission, it is one of those errors in the indeterminate category of errors that this Court identified in Lane v The Queen which is fundamental, that is, it is apt to prevent the jury from doing its job, in a context which this Court noted, with respect, understandably in Azzopardi, of a breach of the very nature of an accusatorial trial which is something which has become deeply embedded in Australian law, as the Court noted in Azzopardi¸ for at least the better part of a century.

So it fits that category, in our submission, and of course, if it does, one does not need to go any further.  But of course, in this case I would not be doing my job if I did not then notice the failsafe, which is that in any event it was an error that went to the critical component of the jury’s task, that is, the assessment of the reliability and credibility of the complainant upon whose evidence the Crown case wholly rested.

As a result of that, there cannot conceivably be said, in our respectful submission, to be any certainty that the jury did not reason in that way and if they did, that it was likely to impact on the verdict, given the otherwise finely balanced nature of the respective cases.  Unless I can assist the Court, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Holt.  Yes, Mr Heaton.

MR HEATON:   Your Honours, the law in the process of reasoning that is promoted by the appellant in this case is essentially the same process that was cautioned against in the reasoning of this Court in Weiss and then reinforced in Kalbasi and that is to be distracted by attaching essentially other words to describe the process that is being undertaken.  What I mean by that is that at the root of this appeal is this question of a miscarriage of justice.  In the absence of a miscarriage of justice, well, then the appellant fails to get over essentially the first hurdle of the common form appeal provisions in section 668E(1). 

Throughout, I guess, the course of submissions and indeed up to this point, there has been a tendency to regard the words said by the judge, the impugned statement said by the judge, as being wrong, or being an error, or being an irregularity in the trial.  That essentially, though, is a conclusion and having reached that conclusion, then it said that absolute rules apply, what is said in Weiss by way of historical analysis of the exchequer rule and such like dictates that in the event that there is an error or an irregularity or something wrong with the trial, that that by itself entitles the appellant to succeed in the appeal.

In our submission, that process of reasoning is wrong and fails to properly focus on the need to establish, in the circumstances of this case, a miscarriage of justice prior to any further considerations as to whether or not the appeal ought to otherwise succeed and that essentially was the task undertaken.  Yes, your Honour.

BELL J:   Mr Heaton, if I could just interrupt for a moment and take up with you paragraph 7 of your outline .  You there state that:

The otherwise clear directions given to the jury on the onus and standard of proof did not give rise to the reasonable possibility that the jury would have felt that it was open to them to more readily accept the complainant’s evidence because of the absence of sworn evidence from the appellant.

When one turns to the impugned direction at combined appeal book page 25, between lines 5 and 11, including the invitation to take into account the absence of sworn evidence by the appellant, may make it easier to accept that the evidence of the complainant, in a context in which that was the issue for the jury’s determination, how can you support that contention in paragraph 7?

MR HEATON:   Well, with respect, your Honour, there is a fundamental conclusion in the way that your Honour has posed the question and where it is clear‑cut, as your Honour poses, I would be in a significantly greater difficulty.  The comment that was made:

that may make it easier –

is not, in my respectful submission, as clearly open to a singular interpretation as the appellant submits.  The fact that it was after much more detail and clear instruction as to the actual role of the appellant’s silence in the context of that trial, which is the passage that appears at page 20 of the core appeal book, in the first full two paragraphs ‑ ‑ ‑

BELL J:   Mr Heaton, coming back to the direction at page 26, the words “that may make it easier” come immediately after the direction:

But, in this case, bear in mind that she gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account.  That may make it easier.

This in the context of a standard warning respecting the need to scrutinise the evidence of the complainant with care.  So one might think – yes, Mr Heaton.

MR HEATON:   Again, I say that it is necessary to properly understand the impact of those words by looking at the summing‑up as a whole, which was the ‑ ‑ ‑

EDELMAN J:   Mr Heaton, do you accept that, at the very best, the jury were confused or were liable to be confused by being presented with two contradictory directions?

MR HEATON:   Can I answer that in this way.  I say that there was a potential for confusion to arise and particularly when one ‑ ‑ ‑

GORDON J:   Is that right, Mr Heaton?  Could I ask a question?

MR HEATON:   I beg your pardon.

GORDON J:   Is that right?  I understood paragraph 8 of your written submissions to accept that there was a risk flowing, but you say:

it is accepted that the risk flowing from the impugned words is that the jury may have felt it was open for them to reason impermissibly ‑ ‑ ‑

MR HEATON:   That is a risk that flows from the inclusion of those words in themselves.  I accept that, and that is why the Court of Appeal concluded, without contest by us in this appeal, that the judge ought not to have said those words.

GORDON J:   Right.  So we start from the proposition that ‑ ‑ ‑

MR HEATON:   But that, respectfully is not the end of the matter.

GORDON J:   It is an error which you accept - accept it brings with it a risk the jury may have reasoned impermissibly.

MR HEATON:   Well, again, can I go back to my submission earlier.  Referring to it as an error rather than focusing on whether the effect of the words said caused a miscarriage of justice is apt to essentially distract from the core issue that the court has to decide.  The words were certainly unfortunate.  An inquiry for the court raised on this ground in this appeal was whether or not, having said those words, a miscarriage of justice was occasioned.  In order to answer that question the court is required - and indeed embarked upon the process - of analysing the effect of those words in the context of the summing‑up as a whole and the trial as a whole.

KIEFEL CJ:   Mr Heaton, for the risk to be averted, avoided, the jury would have had to have ignored what his Honour said.

MR HEATON:   Yes, your Honour.

KIEFEL CJ:   That is after they are told more than once that they must attend to what he says.

MR HEATON:   I am sorry to be a nuisance, but again our line dropped out and so I did not hear all of that question.

KIEFEL CJ:   That is not a problem.  We have problems with linkages every now and again, Mr Heaton.  I was just directing attention to the possibility that for the risk, which you acknowledge to be avoided in this case or not realised, as I think it has been put, the jury would have had to have ignored what his Honour said.  That is really where we are when we are talking about the realisation of a risk, and what is the chance of that really happening, given that they are told to attend to his every word?

MR HEATON:   Well, respectfully, that is not perhaps the only way that they could have been denied any effect in that, because the words – unlike the clear direction that was given in Azzopardi, these words were unclear.  The meaning of them was unclear, and what it was that he was precisely referring to when he said “that may make it easier” is not clear.  What was clear is the other directions that were given about the onus of proof, the burden of proof and the role of his silence in the context of their assessment of the evidence. 

So, in the overall assessment, and putting those words in the context of the summing‑up as a whole, the court found – and we say properly – that there was no reasonable possibility that the jury would have been lured into impermissible reasoning by virtue of those four words having been said.

KIEFEL CJ:   Could you remind me, Mr Heaton, just how you say the jury might have – what the alternative views of what that sentence could have meant to the jury are?

MR HEATON:   It may have meant – I accept that it is not clear, can I make that clear at the outset?

KIEFEL CJ:   Yes.

MR HEATON:   I accept that my learned friend’s interpretation of it is one that is open.  I say that it is also open for the jury to have concluded that the fact that they have only the evidence of the complainant to assess, to determine whether or not they are satisfied to the requisite standard may make it easier.  They do not have two bodies of evidence to consider.  That is, in my submission, a reasonable alternative interpretation of what was said. 

But the context in which it was said, it being simply five words,  not of clear definition or meaning in the context of otherwise clear directions about what they should do, it is – it does not necessarily dictate that the jury would have been distracted from their proper task.  Indeed, ultimately, that was the conclusion of the Court of Appeal that looking at all of the summing‑up – looking at the very clear directions, these words unfortunately said – have been said but in the context cannot reasonably have distracted the jury from their proper task.  On that basis, there was no miscarriage of justice. 

So, it does not illuminate the question, in my respectful submission, to categorise that as being an error or an irregularity and then attempt to employ the words that were said in Weiss or in Kalbasi of absolute consequences that flow from a finding of that nature.  We say the answer lies in understanding that these were words said which ought not to have been said but the question for an appellate court is whether or not there was a miscarriage of justice and that was the task that was undertaken, in our submission, properly by the court.

Could I then turn to some other submissions in relation to the question as to whether or not the Court of Appeal was essentially employing proviso reasoning when considering the third limb of section 668E(1) in the disposition of this appeal.  Properly understood, in my submission, Weiss, and then later Kalbasi, is authority for the proposition that using words which are not the words of the statute is apt to distract a court from the proper consideration of the question raised in an appeal. 

So, referring to a test such as “lost a fair chance of an acquittal” or a “reasonable possibility of an acquittal” or whatever formulation of words throughout history have been used which was understood to be a formulation of the test for the application of proviso, the Court in Weiss cautioned against that, not because it was wrong to do so but because, in our submission, the key question was whether or not a substantial miscarriage of justice had occurred.  A substantial miscarriage of justice may occur in a whole variety of circumstances that the “reasonable possibility of an acquittal” test may fail to capture.

It was not that those words are not, in an appropriate case, a way of describing what is said to be the substantial or, indeed, we say in this case, the miscarriage of justice that was occasioned.  That follows from understanding that the…..on this ground was to determine whether or not those words have led to a miscarriage of justice.  The court analysed then the effect of them and it was a, perhaps, convenient and appropriate way to express the absence of a miscarriage of justice by reference to the fact that the words themselves cannot have distracted the jury from their proper task so that the defendant did not realistically lose a chance of acquittal that might otherwise have been open by virtue of impermissible reasoning by the jury.

So it was perhaps a shorthand way of describing what was essentially the effect of the words, in the finding of the court, that were impugned in the summing‑up.  So, respectfully, we say that the conclusion or the…..somehow evidences a reasoning which is incompatible with Weiss and with Kalbasi is not made out.  Otherwise, can I just finally…..that must be decided is ‑ ‑ ‑ 

KIEFEL CJ:   Mr Heaton, you broke up then.  Would you mind - would you mind ‑ ‑ ‑ 

MR HEATON:   ‑ ‑ ‑ a miscarriage of justice.  That question is at the heart of this…..

KIEFEL CJ:   Mr Heaton, you just broke up then.  Would you mind starting again on your - I think you started to say “finally”.

MR HEATON:   Yes.  The nature of the inquiry of the court when faced with this challenge to the verdict was whether or not there was a miscarriage of justice.  That necessarily required an analysis of the words themselves, attaching some nomenclature to it that it was an error, or that it was an irregularity, or the like.

Indeed, in Weiss and in Kalbasi – well, in Weiss, following the historical analysis of the Exchequer Rule and the cases that followed thereafter in its application, the Court referred to Mraz as being the authority for that seemingly, in my submission, superficially, absolute rule that any irregularity in a trial according to law amounts to a miscarriage of justice.

Can I say two things about that?  First, in Mraz, in the judgment of Mraz itself – and I will just turn that up – which is at page 352 of the joint book of authorities - Mraz was a proviso case and indeed, Justice Fullagar, whose passage is often referred to, was speaking in terms of the proviso.  He said this at 514, about a third of the way down the page, in the second paragraph:

It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed.  If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice.

So whilst I accept that he was, in terms of the proviso - the concept that he was explaining there was one of a miscarriage of justice and it is those words “miscarriage of justice” that appear commonly in both the third limb of 668E(1) and the proviso.  The difference is the addition of the qualitative term “substantially”.  But “miscarriage of justice”, which is at the heart of the question of any failing of process or outcome in the trial, which is the inquiry of the court when trying to uncover whether or not a miscarriage or justice has occurred, it was not, in our submission, the intention of the court to be saying, absolutely, that any shortcoming, any failure, no matter how inconsequential, was necessarily then a miscarriage of justice entitling an accused, subject to the proviso – to the conviction being overturned. 

This is evident from a number of statements from various judges sitting in cases following after Weiss, and indeed following after Kalbasi.  By way of example, the recent case of Craig, in which it was accepted that the advice that had been given – I will go back a step.  My learned friend seeks to distinguish these cases on the basis that the inquiry was a different one.  This was a failure of essentially the defence counsel to perform to a competent standard, or at least that was the allegation. 

What he is essentially then promoting is some sort of different categories of events in a trial that might ultimately lead to a miscarriage of justice, some require an analysis as to whether or not the outcome was affected, others, if an error or irregularity…...then there is no need to inquire as to whether the outcome was affected.  That is essentially, as understood, the submission of the appellant ‑ essentially, though…..a categorisation difference of what is essentially a single concept, that is miscarriage of justice. 

In the circumstances such as in Craig where it was said that as a result of the advice that had been given an accused person was denied a proper choice as to whether or not he should give evidence, in dismissing his appeal the Court essentially found – and I am paraphrasing – but the Court essentially found that the circumstances in that case were such that the decision to not give evidence was not just based on the erroneous advice, but also on another basis which was sound and discrete in itself.

But the inquiry of the Court when faced with the contention that there was a miscarriage of justice looked at what happened and what the effect of it was.  Essentially, the same process of reasoning is appropriate in the example of a case where what happened was some thing rather than an absence of some thing, such as this. 

In this case what happened was those words were said.  The inquiry is what was the effect of those words to determine whether a miscarriage of justice resulted.  It does not invite - in spite of what might seem superficially attractive from Weiss and from Kalbasi, it does not invite the application of an absolute rule. 

That submission is based on the premise that we say that these words were not an error or an irregularity of the nature as to give rise to the conclusion that the trial has not been one according to law.  I guess by way of alternative submission on this point, what was said in Weiss and what was said in Kalbasi, drawing on what was said in Mraz, essentially requires that the error or the irregularity that is spoken of be one that is such as to render the trial one not according to law.

In any event, in my submission, there was no error on the part of the Court of Appeal.  The ground of appeal that was raised was squarely tackled by reference to the threshold questions as to whether there was a miscarriage of justice.  It was proper for the court to analyse the effect of the words used to determine whether a miscarriage of justice was occasioned.  That was properly done by reference to the context of the words in the whole of the summing‑up and also drawing on the fact that counsel, particularly counsel for the appellant at the trial, did not seek a redirection on that point – counsel did seek a redirection but not on this point which is a relevant consideration and does lend some support to the conclusion that the effect of the words that is advocated for by the appellant

in this appeal was not such as to reasonably give rise to the perception that the jury would be misled from their task of properly assessing the evidence.  Those are our submissions.  Thank you, your Honours.

KIEFEL CJ:   Thank you, Mr Heaton.  Do you have anything in reply, Mr Holt?

MR HOLT:   No, we do not, thank you, your Honour.

KIEFEL CJ:   Yes, thank you.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 10.47 AM MATTER WAS ADJOURNED