George v The State of Western Australia
[2021] HCATrans 212
[2021] HCATrans 212
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P45 of 2020
B e t w e e n -
IGNATIUS GEORGE
Applicant
and
THE STATE OF WESTERN AUSTRALIA
Respondent
Application for special leave to appeal
KIEFEL CJ
GAGELER J
KEANE J
GORDON J
STEWARD J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE
ON WEDNESDAY, 8 DECEMBER 2021, AT 2.21 PM
Copyright in the High Court of Australia
KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.
MR S. VANDONGEN, SC appears with MR S. NIGAM for the applicant. (instructed by Nigams Legal)
MR L.M. FOX, SC appears with MS H.K. WATSON for the respondent. (instructed by the Office of the Director of Public Prosecutions (WA))
KIEFEL CJ: Yes, Mr Vandongen.
MR VANDONGEN: Thank you, your Honour. The narrow issue raised by this application for special leave to appeal is whether the majority in the Court of Appeal was correct to conclude that a complete absence of a warning to the jury not to use the applicant’s silence in the Court in any way to his detriment, which was said by the majority in Azzopardi v The Queen to be almost always desirable, did not give rise to a miscarriage of justice.
The resolution of that issue, in my submission, requires attention to be given to two matters. The first matter is whether there was the existence of a perceptible risk that the jury might have improperly used the fact that the applicant remained silent at his trial, and the second issue is whether the evidence that was adduced or the directions that were given would have sufficiently eliminated that risk and also whether the question of miscarriage of justice in this case is informed by forensic decisions that might rationally have been made by counsel. Essentially, the applicant relies upon the decision of Justice Mazza, who was in the minority, and in particular you can find his decision at core appeal book page 133 from paragraphs 219 onwards.
As you will see from the written outline of oral submissions that I intend presenting this morning, I intend dealing with the first issue that I raised, that is, the existence of the risk, and then deal with the issue of whether or not the directions and/or the evidence that was adduced at trial eliminated that risk. You will see from my written outline of propositions that there are a number of reasons why, in this particular case, there was the perceptible risk that the jury may have misused the fact that the applicant did not give evidence in his trial.
The first point is one drawn from the majority decision in Azzopardi at paragraph 51, a paragraph which I do not need to take your Honours to, because I am sure that it is well known, other than to note that their Honours in that paragraph used the words:
Plainly that is so -
when referring to the risk that a jury may draw incorrect inferences or impermissible inferences from the fact that an accused person has not given evidence at their trial. Plainly that is so because left to themselves, in my submission, juries may well speculate about why an accused has not given evidence and draw inferences that are unfair and inferences that are contrary to the way in which the accusatorial process works when, as the majority in Azzopardi in earlier paragraphs identified, there may be many reasons why an accused person does not give evidence at trial. One of those which was identified by the majority in early paragraphs was a person may not feel as though they are going to be able to sustain credibility under cross‑examination.
In this case, the risk that the jury drew an impermissible inference was highlighted by the fact that the jury was specifically alerted to the fact that the applicant had not given evidence, and we referred in our submissions to the core appeal book, and I do not need to take you to it; I will just give you the references. They are pages 12 to 13 and page 25 of the core appeal book, which is the transcript of the directions that were given by the trial judge.
On two occasions the trial judge told the jury specifically that the applicant had not given evidence and in fact in one of those passages alerted the jury to the fact that he had not been cross‑examined by the prosecutor. You will find that at the bottom of core appeal book page 12. It would have been obvious on the basis, at the very least of those two observations, that this meant that the applicant had not given evidence on oath. It would have been obvious that he had not been cross‑examined.
In addition to that, the practice in this State is that at the end of the prosecution case, and before the accused elects to give evidence in the presence of the jury, the trial judge asks, in most cases, the accused’s lawyer whether or not the accused elects to give or adduce evidence, and that takes place in front of the jury. So, in addition to being directed at the end of the trial, the jury, in this case, would have been well aware of the fact that the accused – the applicant – did not give evidence.
KIEFEL CJ: Mr Vandongen, is it correct to say that the defence focused upon the electronically recorded interview with the police?
MR VANDONGEN: Yes, it did.
KIEFEL CJ: And it ran the defence consistently with what the accused had said at that interview?
MR VANDONGEN: That is correct. In effect, denials of touching, albeit left open the possibility of unintentional or accidental touching in the course of opening the laundry door. I know that the transcript of the video record of interview is not in the materials, but you will find a good summary of what the record of interview contained at core appeal book page 83, at paragraph 40 of the judgment of the majority in the court below.
KIEFEL CJ: In those circumstances it is said by the respondent that it was open to defence counsel, who of course did not seek the Azzopardi direction - it was open to defence counsel rationally to conclude that the applicant’s interests were best served by directions which gave, as they did, false equivalence to the denials in the record of interview, but otherwise leave the directions which might emphasise, unnecessarily, the right to silence, or what was to be made of the fact that he did not give evidence – what the trial judge did was emphasise the right to his silence.
MR VANDONGEN: One of the reasons why I took your Honours to the fact that trial judge specifically alerted the jury to the fact that he had not given evidence on two occasions is in part to demonstrate that it could not have been a rational forensic decision not to seek the direction because the jury had already been told on two occasions that he had not given evidence. In terms of giving false equivalence to the video record of interview, can I turn to that in a moment when I deal with the directions because, in my submission, that submission on behalf of the respondent ought be rejected for reasons that I will come to in a moment.
KIEFEL CJ: Yes, thank you.
MR VANDONGEN: The jury was specifically alerted, as I have said on a number of occasions, to the fact that the appellant/applicant had not given evidence in circumstances in which there was, in my submission, a real risk that the jury might use the fact that he had not given evidence in a manner detrimental to him and unfairly in a manner detrimental to him. It could not have been a rational forensic decision for trial counsel to decide that it was not in his interests for the fact that he had not given evidence to be mentioned once again in circumstances in which that mentioning of it once again would be to remove the possibility that the jury might reason in an impermissible way.
The trial judge did give directions about the right to silence, but they were limited to the right to silence only. You can find the directions about the applicant’s right to silence and the fundamental principles that apply in this trial, as they do in every criminal trial, at core appeal book pages 11 and 12. What is to be noted about those directions is that on no occasion did the trial judge give anything that was expressly a warning against using impermissible reasoning processes, and certainly nothing that, by way of inference, could support that conclusion.
The closest that the trial judge, with all due respect to her, got to giving a direction in accordance with Azzopardi, more specifically a direction that alleviated the potential for the jury to engage in admissible reasoning process was at the top of page 13 of the core appeal book, and if I could take your Honours to that now - and it begins in the first line there:
So that’s sometimes spoken of as the right to remain silent.
If I could direct your Honours’ attention in particular to the last two sentences in that paragraph, which begin with the words “He did”. Now, not only was that the closest the directions came to alerting the jury to the risk that they not engage in impermissible reasoning process, but as his Honour Justice Mazza concluded below and, in my respectful submission, correctly, that direction did nothing more than to confuse the issue.
Those words that were used in that part of the direction could not, in my respectful submission, have meant very much to the jury and certainly could not have conveyed to them the understanding that they were not entitled to use the applicant’s silence in court in any way detrimental to him.
KIEFEL CJ: Mr Vandongen, I think you would agree that the principles in Azzopardi of course were not in dispute here and the desirability of giving the direction is not in dispute. What seems to have – there is no question of principle therefore involved. What separated Justice Mazza from the majority was in the application of those principles to the facts of this case.
MR VANDONGEN: Yes, I understand that. A step in the process of the application of the principles, in my submission, is to identify that there was a risk and the fact that there was a direction that was given that served only, in my respectful submission, to confuse the jury is a stepping stone or is a component of the argument that there was the existence of a risk in this particular case.
Your Honour the Chief Justice asked me about false equivalence, and can I just deal with that in the context of risk for a moment. If you look at page 11 of the core appeal book, it begins at the top of page 11 with the words “So first of all” and the passage ends at about line 30 “was wearing on the day in question”. What her Honour did there – and obviously I will not read it to your Honours – but what her Honour did there was draw a distinction between the different types of evidence that was being relied upon in the trial.
You can see there, firstly, in the first paragraph, first sentence, there is the highlighting of the fact that the “the evidence is what you saw or heard” witnesses say, and highlighting examination‑in‑chief, cross‑examination and re‑examination. Then, at about line 10, reference specifically to the complainant’s evidence and the fact that it was the subject of cross‑examination. The mother’s evidence and the police officer’s evidence are the subject of the next paragraph, and again, those issues are raised, and then at about line 20 through to line 30 a different category of evidence, that is, the exhibits, and one of those exhibits was “Exhibit C”, at about line 28:
which is the electronic record of interview –
Now, it is true that on occasions, throughout the course of her Honour’s remarks to the jury, her Honour referred to the video record of interview as evidence, or the appellant’s evidence, and you can see that, for example, at the bottom of core appeal book 14 in the very last paragraph, in the second‑last sentence, where she refers to it as:
evidence of the accused man in his electronic record of interview.
She also does that at page 26 at the very top of the page:
So if you find that you have difficulty in accepting the evidence of Mr George –
and this is in the context of the direction that was given in compliance with his Honour Justice Brennan’s minority decision in Liberato v The Queen, but when you look at it, there are other passages, many other passages, in which there is a distinction drawn between the evidence of a witness and the evidence of the video record of interview. The starting point for that - I took your Honours to core appeal book 13, can I take you back to that page, and draw your attention to the second paragraph, which begins “Mr George, of course, did speak to the police” and, in particular, it is the last sentence of that paragraph:
And I will speak to you a little bit later about how you must treat that evidence –
You can see that her Honour changes from talking about it as being the “evidence of Mr” George, to:
the evidence of the electronic record –
of interview:
of Mr George.
KIEFEL CJ: Mr Vandongen, at other points her Honour refers to what Mr George said in the interview as if it is his evidence.
MR VANDONGEN: Those two past passages that I took you to at core appeal book 14 and 26 are examples of those. I do not suggest that they are the only examples, but insofar as…..false equivalence is concerned, that argument appears to stem from the Liberato direction, and I was just about to take your Honours to the Liberato direction to show you how her Honour dealt with it in that context and that is at core appeal book pages 25 and 26 and it starts at about line 20 on page 25 and at about line 25:
I do want to give you some special directions about the evidence of both Mr George and one aspect of the evidence –
of the complainant, and immediately her Honour says:
First of all, Mr George didn’t give evidence during this trial.
So, in the next paragraph, by way of distinguishing the fact that he did not give evidence, says:
But he did give his version of events in his interview –
Now, when you go over, having read that page, to the top of page 26 of the core appeal book, I took you already to the slipping or the eliding, if you like, into the description of what he said in his record of interview as the evidence of Mr George. But then if you look at what she said immediately – that is, the trial judge said immediately after that in that first paragraph:
But even if you do not believe what Mr – what Mr George had to say in the electronic record of interview –
She repeats that phrase at line 10, and the whole of the third paragraph on that page is all concerned with what he had to say in the record of interview, against the background of course of the introductory remarks that I have already taken you to at core appeal book 25 at about line 25 - was a reminder that he did not give evidence in trial.
So overall, and particularly in relation to the Liberato direction which appears to be the thing relied upon the most in terms of false equivalence, there was no false equivalence. There was a direction given or comments made, or directions given, observations made that that did not constitute his evidence in court.
The next point, or the next submission that I want to make is in relation to again dealing with the topic of risk, a comparison between the form in which the complainant’s evidence took and the form in which the video record of interview took. At the trial, that is, at the trial that was heard before the trial judge, the complainant’s evidence was presented in the form of two videos. The first video was a record of interview that was conducted with the police on 20 April 2017.
On a subsequent occasion. but before the trial before the trial judge, on 8 June 2018 there was another hearing, that is, before a different judge. At that time the complainant gave evidence and the evidence that she gave was to firstly adopt the record of interview that she gave on 20 April 2017 as being the truth. She then gave further evidence in examination‑in‑chief and was then cross‑examined by a different defence counsel. That was all video recorded and that video recording was presented to the jury at the trial that was conducted in November of 2018.
The similarities – and bearing in mind of course that the initial record of interview that was conducted with the complainant was conducted on the same day that the electronic record of interview was conducted with the applicant, so the similarities between the two forms of evidence threw up the difference between the two, that is, that one was the subject of adoption on oath and cross‑examination by defence counsel, whereas the video – the electronic record of interview that was conducted with the applicant was not subjected to the same processes.
That would, in my respectful submission, have been obvious to the jury and further enhanced the risk of them using the applicant’s silence in court against him in an impermissible way. This was one of the matters that Justice Mazza had regard to as a matter of fact in finding that there was a miscarriage of justice in this case, a matter that was not taken into account by the majority.
This is in circumstances in which, whilst there was evidence adduced from other witnesses, it was essentially a “word against word” case, because the only two people who were in the laundry at the time were the complainant and the applicant, and so in circumstances in which the complainant had given evidence and had been cross-examined, the applicant had not. The temptation in that kind of case, to use the applicant’s silence in a matter detrimental to him, in my submission, was palpable.
What that meant was, in my submission, that those factors together give rise to the risk that it was misused, and there were particular ways in which in this case it could have been misused. One, of course, was essentially as an implied admission of guilt, that is guilt based upon conduct, conduct being not giving evidence in court and using that in a particular way in this case might, for example, have occurred by giving greater weight to the prosecution evidence.
Insofar as the filling in of gaps which is one of the factors referred to in Azzopardi, another way in which it could have been used in this case, and this was not the subject of argument before the Court of Appeal, but another way it could have been used is that one of the exhibits that was tendered in the trial was a recording made on a mobile telephone by the complainant’s mother of a conversation that she had with the applicant immediately after the alleged occurrence.
The recording was not very good and was very difficult to hear, and there was a question mark about whether or not certain words that had been said by the applicant amounted to admissions. So, the absence of evidence from him – silence in the court – there was a risk that it may have been used to fill in those gaps. The third way ‑ ‑ ‑
KIEFEL CJ: Mr Vandongen, in this connection, I think on at least three occasions the trial judge emphasised to the jury that the onus remained on the State at all times to prove the charges beyond reasonable doubt ‑ ‑
MR VANDONGEN: Yes, your Honour.
KIEFEL CJ: That is not unimportant, is it not?
MR VANDONGEN: No, it is not unimportant. It certainly was one of the reasons why the majority found that there was no miscarriage of justice. But the simple point that ‑ ‑ ‑
KIEFEL CJ: They were told on at least two occasions that it was his right to not give evidence, he should not be treated differently because of that, and that he was presumed innocent until all the charges were proved beyond reasonable doubt.
MR VANDONGEN: Yes. In my submission, the answer to that is that no doubt that was the situation in Azzopardi, given that the majority spoke in the earlier paragraphs in their joint judgment, about the essential principles underpinning a criminal trial, the accusatorial trial, including the right to – the onus of proof, and the standard of proof – that, essentially, however, that in applying the burden and standard of proof to reach a conclusion it would have been open to the jury in this case, absent a direction not to do so, to have used the fact that the applicant remained silent as part of the process of reasoning towards proof beyond reasonable doubt, as part of the process of using the principle that the onus was on the prosecution in establishing that he was guilty.
If it was used, for example, as an implied admission, as evidence of an implied admission ‑ which appears to be one of the concerns expressed by the majority in Azzopardi ‑ then it was a step, or a piece of evidence, used in the process of reasoning towards guilt, applying those principles that the jury in this case were told they had to apply, that is, proof beyond reasonable doubt and the onus is on the prosecution.
Now, in this particular case I have talked about two ways in which the jury may have misused the fact that he did not give evidence, and the third way is that in relation to the video record of interview itself the jury – it was open to the jury, absent a direction not to do this, to use the fact that he had not said anything in court as an implied admission, as a piece of evidence or a step in the process of rejecting…..said in his record of interview.
So, there was risk that the jury used the very fact that he did not give evidence to then reject what he said to the police at the initial stages. I think at the initial special leave hearing Justice Gageler asked me whether or not putting it that way added to what the applicant said in the court below. In the applicant’s book of further materials, we have provided the Court with the submissions that were made by the respondent and by the applicant in the court below.
So that your Honours understand, what happened was that the applicant was unrepresented at the main hearing of the appeal below. In his written submissions – the original written submissions reference was made to Azzopardi and to paragraph 51. The court at the conclusion of the hearing invited written submissions – made orders for further written submissions to be made by the parties and they then resulted in the submissions that you find in the further materials at page 318, the respondent’s supplementary submissions.
Then the applicant was invited to respond to those. He did so at page 323 of that book. At page 325 at paragraphs 9 through…..he raised submissions about the risk of misuse, and can I highlight the first two lines at paragraph 12 where the applicant actually submitted to the court, does not appear to have been considered by the court ‑ at least the majority does not appear in the reasons ‑ that one of the risks here is that his failure by that – I think the word “omission” is used in that sentence – that his failure to give evidence:
may have led to the rejection of the interview –
Now, having identified the risks, could I then turn to deal with the question of whether the majority was correct to conclude that there was no perceptible risk, or no miscarriage of justice. Can I, in doing that, ask your Honours to turn to the core appeal book at page 99.
The full extent of the majority’s reasoning about leading to the conclusion that there was no miscarriage of justice is at paragraphs 87 and 88. When you analyse paragraph 87, there are in fact only three reasons that have been provided that form the basis of the majority’s conclusion that there was no miscarriage of justice.
The first was that the applicant’s account was before the jury via the electronic record of interview. In my respectful submission, for the reasons I have already discussed with your Honour the Chief Justice but also logically the fact that the electronic record of interview was before the jury does not logically reduce the risk of impermissibly using silence and at the forefront of those problems is the one that I just mentioned a few moments ago, that the jury may have used the fact that he did not give evidence as a reason, amongst other reasons, for rejecting the record of interview.
KIEFEL CJ: If that risk had eventuated and the jury rejected the record of interview, the Liberato direction would have told them what they had to do after that – that is, even if rejected, they had to consider all of the evidence for themselves.
MR VANDONGEN: Yes, but it would have been impermissible for them to use as a reason or one of the reasons for rejecting the record of interview the fact that he did not give evidence. It is the fact that it was open to them to do that, perhaps in a direction, that in my respectful submission illustrates the problem with not giving a direction in this case.
The defence case, as I said earlier, was largely dependent upon submissions that the complainant ought not be believed and that the record of interview raised at least a reasonable doubt. It was a significant piece of the defence case and if the jury, perhaps in a direction from the trial judge not to engage in its reasoning, reasoned that he did not give evidence implied admission, we are going to reject his record of interview, that was a significant miscarriage of justice.
Incidentally, it does not appear, I do not think, from the judgment in Azzopardi, but when you read the argument before the Full Court, even in Azzopardi there appears to have been a video record of interview called an EROI, an electronic recording of interview.
In my submission, the first reason the court gave – that is, that the applicant’s account was before the jury via the video record of interview – does not logically ameliorate the risk for the reasons that I have just explained. The second reason that the court gave ‑ ‑ ‑
STEWARD J: Mr Vandongen, I am sorry, before you go on to your second reason, am I right in thinking that in the prosecution’s closing address to the jury they - counsel invited the jury to consider the demeanour effectively of your client, and reference I think was made to the way he used hands a lot? Is that right?
MR VANDONGEN: Yes, that is right.
STEWARD J: So, is that anything at all that you rely upon as part of your case?
MR VANDONGEN: I have not made any written submissions about it. Could I have a think about that and come back to your Honour?
STEWARD J: Thank you. Sorry to interrupt you.
MR VANDONGEN: Thank you, your Honour. The second point that I was going to make relates to the second platform, if you like, that the majority relied upon, and that is the directions that were replicated at paragraphs 84 and 85 of the majority decision. Those directions are concerned with the presumption of innocence, the standard, and the onus of proof only, and at the risk of repeating the submissions that I made in answer to your Honour the Chief Justice’s questions a few moments ago, they do not comprise express or even implied warnings against impermissible reasoning, and, as I submitted earlier, it ignores the fact that silence might be used by a jury in the process of deciding whether or not proof that the prosecution has discharged this onus of proving guilt beyond reasonable doubt.
So, in my submission, the directions that are replicated in paragraphs 84 and 85 do not alleviate the risk, are not sufficient on their own, and not in combination with the other factors that the majority relied upon, in alleviating the risk. Justice Mazza dealt with this issue much more eloquently than I have at core appeal book page 134 at paragraph 223.
Whilst he does not deal with expressly my argument that silence may have been used in the process of ultimately engaging with the directions at paragraphs 84 and 85 that is being used whilst at the same time complying with the directions at 84 and 85. In my submission, his Honour is correct, with respect, that:
it is one thing for a jury to understand that –
there is a right to silence:
it is another thing to understand what the consequences –
of that are, and to be warned about what the consequences may not be. The third reason that the majority ‑ ‑ ‑
KEANE J: Mr Vandongen, in relation to the submission you have made about using silence or the absence of evidence to fill gaps in the evidence, did counsel for the accused suggest at trial that there was a gap in the evidence of the kind you have suggested to us?
MR VANDONGEN: No, not that I have seen.
KEANE J: So, the position would be that the judge, you say, should have said, you must not use the absence of the accused from the witness box to fill in gaps in the evidence. Why would a judge be saying something like that to the jury when counsel for the accused did not identify the problem?
MR VANDONGEN: It is not so much gaps in the evidence, it is the inference of guilt being drawn from the absence of giving evidence.
KEANE J: That just takes us back to the significance of the circumstance that your client’s evidence was before the jury through the record of interview.
MR VANDONGEN: It does. Again, I have made the submission that in considering the weight to be given to that, the jury, absent a direction not to engage in the impermissible drawing of inferences from silence – that is, “He did not give evidence, therefore he is guilty” – may have been used by the jury. There was a risk that the jury used that process of reasoning in determining whether or not to accept, or whether it raised – whether the record of interview raised a reasonable doubt. So, in answer to your Honour Justice Keane’s question about filling in the gaps or the existence of gaps in the prosecution case, no, that was not the subject of any express comment or submission by counsel for the applicant.
KEANE J: Do you agree that it would be undesirable in the extreme for the trial judge, in the absence of a suggestion or an argument from counsel for the defence, to be raising gratuitously for the jury the suggestion that there are gaps in the prosecution case?
MR VANDONGEN: If there were no gaps – if the defence had not relied upon there being gaps in the prosecution case, then I suspect that there would be complaints from the prosecutor about that as well. But my focus, just to be clear, in this particular matter, is not so much on gaps in the evidence. I know that is what the Court of Appeal in the majority focused on. The applicant himself made submissions to the Court of Appeal which were concerned more with the first part, or the first limb, of the Azzopardi concern – that is, the drawing of the inferences of guilt from the conduct of not giving evidence.
You would not expect – that danger exists, whether or not it is the subject of submissions made by counsel for the accused, or by the prosecution for that matter, that danger exists because of the natural temptation for jurors to engage in that wrongful process. That is why, in my respectful submission, the majority at paragraph 51 of Azzopardi used the words “plainly that is so” – that there is plainly a risk that that will occur.
GORDON J: Mr Vandongen, may I ask you about that?
MR VANDONGEN: Yes.
GORDON J: When you took us to core appeal book 134, to Justice Mazza’s reasons, are the things that you are relying upon, other than fill the gaps, the things identified by his Honour in subparagraphs (a), (b) and (c) of 225?
MR VANDONGEN: Yes, your Honour.
GORDON J: Is that how it was put by your client in the Court of Appeal?
MR VANDONGEN: The way in which it was put by my client in the Court of Appeal was, firstly, can I take you to the further book of materials – the applicant’s further book of materials – and to page 264. At about line 30, paragraph 13, what he did was – and bearing in mind he was unrepresented at this time it would appear and was unrepresented in the hearing – he made reference to paragraph 51 of Azzopardi. That appears to be all that was said on his behalf at that time.
I was not at the hearing below, so I do not know what was said other than from the orders that were made. Orders were made by the court and they appear at pages 315 and 316 of the book of further materials. Then those submissions that I took you to earlier were at 318 for the respondent and 323 for the applicant. A long way of answering your Honour Justice Gordon’s question is to take you to page 325. Sorry, before I take you there - - -
GORDON J: They are the paragraphs, Mr Vandongen, you took us to earlier?
MR VANDONGEN: Can I just add to that at page 323, you will see paragraphs 1, 2 and 3 – and in particular 3 – you can see that the applicant relied in particular on the “adverse inference” aspect of it and the “strengthening of the prosecution case” – there was no suggestion made there about filling in gaps.
GORDON J: Thank you.
MR VANDONGEN: I will come back to this later but that is also important because an aspect of this appeal is whether the Court of Appeal dealt with all of the submissions that were made by the applicant – and I will come back to that later. The third aspect of the reasoning is the reliance on the Liberato – so‑called “Liberato direction”. Justice Mazza dealt with this at core appeal book 135, at paragraph 227….. So, essentially what his Honour is saying there, in my submission, the Liberato direction is concerned with dealing with one risk whereas the so‑called Azzopardi direction is concerned with dealing with albeit a related but a different risk.
What his Honour Justice Mazza did not say – and what the majority, in my submission, did not take into account – is the submissions that I have just been making in answer to questions from Justice Keane – that is, in the Liberato direction – being told that in this case if you do not accept or you reject the applicant’s version of events in the record of interview – to put it to one side, and decide the case on the basis of the prosecution evidence alone, ignores the logically anterior question of whether or not the jury may have reasoned towards rejection of the record of interview based in part upon an impermissible use of the applicant’s right to silence. The fact that the Liberato direction was given cannot logically, when it is understood that that is the way in which the jury could have reasoned, ameliorated the risk that was sought to be ameliorated by the Azzopardi direction.
In my submission, when one analyses those three reasons in that way, there is no reason why the direction should not have been given. There is no reason to conclude properly that a miscarriage of justice was not occasioned by the absence of the Azzopardi direction in this particular case.
Can I just deal with one further matter in relation to the reasoning process that the majority engaged in in reaching the conclusion that there was no miscarriage. If you look at the core appeal book at page 98 and if I could direct your Honours’ attention to paragraph 83, in the second sentence there the majority appears to be focusing on the fact that:
the trial judge did not direct the jury that the fact that the [applicant] did not give evidence could not be used to fill in gaps in the State case -
which is only one aspect of the Azzopardi direction, and the, in my respectful submission, unjustified and limited focus on that aspect only of the Azzopardi direction is repeated at page 99 in the first sentence of paragraph 87.
But what is apparent is that is not the only consideration that was relevant here and, as I hope I demonstrated in answer to your Honour Justice Gordon’s questions, was not the limit of the submission that was made by the applicant. The applicant went further than that - even unskilled and untrained, went beyond that and relied upon the other aspects of the Azzopardi direction that I have also referred to. So, in my submission, that is a further reason to conclude that the majority erred in its determination that no miscarriage of justice was occasioned in this case.
KEANE J: Mr Vandongen, if one were to accept what you are just putting to us, would we not necessarily be establishing not a rule of practice that is expressed in terms of what is desirable, but we would be accepting, would we not, a rule of law that has to be applied in every case?
MR VANDONGEN: No, your Honour, it depends on the desirability of the direction in a particular case, and for the reasons I have just ‑ ‑ ‑
KEANE J: But the argument you are putting to us is an argument which is absolute. It is always desirable. The circumstances of a particular case make no difference.
MR VANDONGEN: No, in my submission, in circumstances such as this it is desirable. There may be circumstances, for example, where a defence counsel does not want the direction to be given, and that appears to be the situation that pertains in Victoria and possibly New South Wales where there is a school of thought that that is not something that should be the subject of a direction. So, in circumstances, for example - I do not suggest this is an exhaustive example – but in circumstances in which defence counsel does not want the direction given, it could not be said then that as a matter of law the direction is always required.
KEANE J: But, in this case, in this case, the direction was not sought. Why do we not assume that counsel, for his reasons or her reasons that seem good, in terms of emphasising the difference between the way in which each side gave its evidence, did not seek the direction?
MR VANDONGEN: In this particular case – there are two things to be said about that. The first is that no submissions were made in the court below about whether or not there was a rational forensic decision for not seeking a redirection. So, the majority did not engage in that issue at all. The only justice that engaged in that was Justice Mazza, who determined that there was no rational forensic decision – reason for counsel not to have sought a redirection.
Putting that to one side, in my submission, there was no rational forensic decision for not seeking a redirection in this case because the fact that he had not given evidence had already been emphasised to the jury expressly on two occasions and impliedly at least on one occasion by directing the jury about the different categories of evidence that were being relied upon.
In those circumstances, the only reason why you would not seek a direction, sorry, not in those circumstances, the only reason why a redirection would not be sought is to emphasise the fact that an appellant – that an accused has not given evidence. It had already occurred in this case. The emphasis had already occurred. So, there could not have been a rational forensic reason not to seek a direction that qualified or explained reasoning process that the jury was not entitled to engage in having already been told that he had not given evidence.
Now, the respondent – can I just very briefly deal with some matters raised by the respondent in its written submissions. The first thing to be noted is that the respondent as the Court of Appeal in the majority of the Court of Appeal referred to a number of other decisions of intermediate courts of appeal in which decisions have been made one way or the other about whether or not an Azzopardi direction was or was not required. In my submission, they demonstrate why, in certain circumstances, an Azzopardi direction was or was not required and, in fact, highlights the fact that a decision in this case would not result in a rule of law.
Those cases demonstrate that in circumstances in which it is not a rule of law, it is possible for intermediate courts of appeal to go one way or the other as a mater of judgment having regard to the particular circumstances of the case. But the respondent appears to have referred to those as demonstrating that in those cases there was a heightened risk of a miscarriage.
It may be that, having regard to what they say in their written outline for today’s purposes, that they do not suggest that that is only when an Azzopardi direction is required, but in my submission, whether it is a heightened risk or a risk of a miscarriage, the risk being the risk of misuse, it makes no difference.
If there is a perceptible risk that a jury will misuse the fact that an accused person has given evidence, in all of the circumstances having regard to all of the directions and to the evidence that was given and to the conduct of defence counsel, then if there is still a risk, then that direction ought be given and if it is not given then it gives rise to a miscarriage of justice.
In terms of the issue of whether the – and I have dealt with this to some extent, that is the false equivalence issue, the false equivalence between the record of interview and evidence in trial, the genesis of that submission, and I might be wrong, but the genesis of that submission appears to be the decision in the New South Wales Court of Criminal Appeal in JPM v The Queen [2019] NSWCCA 301, and it may be that it resides in the judgment of Justice Simpson at paragraphs 3 to 5 - I do not need to take you to them, but you can find them in the joint book of authorities at pages 121 and 122.
In JPM there was a remark made by Justice Simpson, and also, I think, by Justice Fullerton about the fact that in that case, the record of interview was treated essentially by the judge as being equivalent to evidence given by the accused. In JPM, it is important to understand that in JPM, at least based upon the record in the Court of Criminal Appeal, no direction was given at all that drew the jury’s attention to the fact that the appellant in that case had not given evidence at all.
So, the directions that were given, and the conclusion of false equivalence in that case, appears to have been based upon directions that did not in any way make the point that the appellant did not give evidence, which is in direct contrast to the circumstance in this case, and I have already taken you to the fact that that had been both expressly and impliedly referred to.
Here, in this case, the trial judge told the jury that the applicant did not give evidence. That telling necessarily meant that the jury was told that there was no equivalence between the record of interview and evidence on oath. The jury were told, and I took you to this earlier, that there were different categories of evidence, some which involve people giving evidence on oath and being cross‑examined, and others that were being provided in the form of an exhibit, namely the record of interview.
So, if that is the genesis of it, that needs to be looked at in its proper context, when its proper context is looked at and compared to the context of this case, there was no false equivalence, including for the reasons that I took your Honour the Chief Justice to earlier in my oral submissions.
Now, I have already dealt – the respondent also makes submissions about rational forensic…..counsel. I do not seek to supplement what I have already said in writing and orally today about that. Those are my submissions, if your Honours please.
KIEFEL CJ: Thank you, Mr Vandongen. The Court will adjourn briefly to decide the course that it will take.
AT 3.17 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.23 PM:
KIEFEL CJ: Mr Fox, the Court need not trouble you. The Court is of the view that special leave to appeal should be refused for the following reasons.
The applicant seeks special leave to appeal to argue that the Court of Appeal of the Supreme Court of Western Australia erred in failing to conclude that the verdicts of guilty on both counts with which he was charged involved a miscarriage of justice because the trial judge did not direct the jury in accordance with this Court’s decision in Azzopardi v The Queen (2001) 205 CLR 50 at 70, [51] and [52].
It should be understood that Azzopardi does not lay down a rule of law. Rather, it is a rule of practice, albeit a most important rule, the observance of which “is almost always desirable” to ensure a fair trial. The applicant does not seek to contend that the rule should be reformulated as a rule of law, of necessary and inflexible application, in all criminal trials. That being so, the question sought to be agitated in this Court reduces to a difference as to the application of the rule in the circumstances of the case.
It is significant that in the present case the applicant’s counsel at trial did not seek an Azzopardi direction as desirable to meet a risk that the jury might use the applicant’s silence in court to reason impermissibly. The trial judge emphasised on a number of occasions that the onus remained on the State and that the applicant was entitled to the presumption of innocence. It was said that it was his right not to give evidence. This was explained in the circumstance where there had been an electronic recording of the applicant’s interview with police upon which the defence relied.
In such circumstances, in our view it was open to the Court of Appeal to conclude that fairness to the accused did not require the trial judge to give the jury an Azzopardi direction. No question of principle arises, nor is it apparent that considerations of justice in the particular case warrant the grant of special leave. Special leave to appeal is refused.
The Court will now adjourn.
AT 3.26 PM THE MATTER WAS CONCLUDED
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