George v The State of Western Australia

[2021] HCATrans 95

[2021] HCATrans 095

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

GAGELER J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 MAY 2021, AT 12.01 PM

Copyright in the High Court of Australia

MR S. VANDONGEN, SC:  If your Honours please, I appear for the applicant in this matter, together with my learned friend, MR S. NIGAM.  (instructed by Nigams Legal)

MR L.M. FOX, SC:  May it please the Court, together with MS G.N. BEGGS, I appear for the respondent.  (instructed by Office of the Director of Public Prosecutions (WA))

GAGELER J:   Thank you.  Mr Vandongen?

MR VANDONGEN:   If your Honours please.  In our submission, the interests of the administration of justice require consideration of the decision of the court below in this matter.  Specifically, we say that the interests of the administration of justice require consideration of the majority’s decision that the absence of any substantive direction designed to dispel the risk that the jury in this case might have impermissibly used the fact that the applicant did not give evidence gave rise to, or did not occasion, a miscarriage of justice.

In this case, it is common ground that the trial judge did not give any direction in terms that were said by the majority of this Court in Azzopardi v The Queen to be almost always desirable.  Not only was there no direction that the fact that the applicant did not give evidence could not be used to fill gaps in the State’s case, the directions did not in any way deal with any of the risks of misuse that were identified by the majority in Azzopardi.

The directions that were given are set out in the application book at pages 88 and 89 by reference to the majority’s judgments at paragraphs 84 and 85.  Those directions did nothing more than, in my respectful submission, inform the jury that the applicant had a right not to give evidence, but critically did not inform the jury of the consequences of the exercise of that right, except in one respect and, in my very respectful submission, in a very confusing way. 

In that regard, if your Honours have regard to what was said at paragraph 84 of the majority’s judgment, you can see there replicated the trial judge’s directions about the presumption of innocence and the standards and onus of proof.  In the second complete paragraph, the only direction that was given about potentially the consequences of the applicant not giving evidence – that is in the third sentence:

He did – he doesn’t, because of that – shouldn’t be treated in any different way by you.

We rely upon the observations that were made by Justice Mazza in dissent that that phrase, or that particular part of the direction, was at best confusing, but certainly did not bring home to the jury the risks attenuated upon using the fact that the applicant in this case did not give evidence.

EDELMAN J:   The two paragraphs that are extracted certainly drew the jury’s attention to the fact that he did not give evidence.

MR VANDONGEN:   They did.  Those are the only two paragraphs.  In my respectful submission, they did, and his Honour Justice Mazza accepted that, but critically did not draw to their attention and did not warn them in terms that were considered desirable by the majority in Azzopardi of the consequences of the fact that he did not give evidence and, in particular, warn them against the use of impermissible inferences to be drawn from the fact that he did not give evidence. 

As I say, the closest that it got was that passage that I read to your Honours which, in my respectful submission, was extremely confusing and did not bring home to the jury what it ought to have brought home.

GAGELER J:   But no Azzopardi direction was sought.

MR VANDONGEN:   No, it was not.  This case, unlike the case of JPM that was referred to by the majority, is not a case in which rule 4, I think in New South Wales, applied.  We do not have a rule 4 in Western Australia.  But, in any event, if you look at the decision of the majority it did not form a part of their Honours’ reasoning to conclude that there was no miscarriage of justice, that there was no direction sought by trial counsel.

Insofar as that was touched upon by their Honours, Justice Mazza dealt with it and can I say, it did not appear from the material that I have seen that it was an issue that was argued below by the respondent as being a factor in favour of a conclusion that there was no miscarriage of justice.

EDELMAN J:   Is that because there is no rational reason why a forensic decision could ever have been made not to seek such a direction, especially in light of the fact that the jury’s attention had already been drawn to the fact that he did not give evidence?

MR VANDONGEN:   Yes, your Honour Justice Edelman, that is precisely the point I was about to make, and can I do it by reference to page 125 of the application book and to paragraph 228 of Justice Mazza’s decision, where his Honour who was the only justice that dealt with the issue of forensic decision made that conclusion that there was no – at least in his appearance:

no rational forensic reason in this case not to seek an Azzopardi direction.

That must be because, unlike in JPM, the New South Wales decision where the trial judge did not at all advert to the fact that the applicant in that particular case did not give evidence, in this case the trial judge did do so on two occasions.

The majority’s reasoning in concluding that there was no miscarriage of justice is really contained in one paragraph on page 89 of the application book and it is at paragraph 87.  I really wish to make three, maybe four submissions about those factors that were relied upon by the majority in reaching that conclusion. 

The first submission is that the fact that appeared to carry the most weight in their Honours’ mind was the one concerning the effect of the so‑called Liberato direction, and the majority of paragraph 87 is concerned with that point, leading to the conclusion in the last sentence at the top of page 90 of the application book, indicating that this must have been a factor that was relied heavily upon by the majority in concluding that there was no miscarriage of justice. 

But, as we point out in our written submissions, and it really is by reference to what Justice Mazza says, and if I could ask your Honours to turn to page 125 of the application book and to paragraph 227, the fact that a Liberato direction was given is one thing, but, as his Honour Justice Mazza, in our submission, correctly identified, a Liberato direction is concerned with a different risk to the one to which Azzopardi is concerned.  Liberato is concerned with the risk – as his Honour identifies about halfway down that paragraph:

a risk that a jury may be left with the impression -

I will not read that part; your Honours can read that for yourselves.  Plainly that is not the risk to which Azzopardi is concerned.  The last sentence - if I go back to page 90 of the application book for a moment and just focus on the last sentence of paragraph 87.  In my respectful submission there is no logical connection between the jury being told that “a positive rejection” of the applicant’s position as contained in the electronic record of interview, “could not be used against him” in the sense that the direction told the jury that that could be put to one side if that was rejected. 

There is no logical connection between that direction and the potential for another fact, that is the fact of a failure to give evidence, to be used contrary to the right to silence.  The first aspect, that is being told a positive rejection cannot be used against the applicant, involves the consequences of a process of reasoning that results in a finding of rejection, whereas the other, that is, the right to silence, and the fact that the applicant did not speak on oath at the trial, and the warning that is required there involves a warning against the use of that fact in a process of reasoning. 

So, to use an illustration in this case, for example, the absence of a direction – an Azzopardi direction – left open the potential for the jury to draw an adverse inference against the applicant, or to conclude that the prosecution case was strengthened and then, based upon that conclusion, have reasoned to rejection of the applicant’s version in the record of interview.  So, when it is looked at in that way, the final sentence which appears to be the major reasoning process adopted by the majority in concluding there was no miscarriage of justice, falls away.

The second submission to be made about the reasoning of the majority in paragraph 87 refers to or is related to the fact – and you can see this in the second sentence in paragraph 87 – a reference there to, amongst other things, the Liberato direction but, also, the fact that the applicant’s account was before the jury via the electronic record of interview. 

In our respectful submission, the fact that the record of interview was before the jury does not logically deal with the risk that the jury may use another fact – that is, the failure to give evidence in a manner which was adverse to the applicant, and impermissibly so. 

When the directions were given – those directions that I took your Honours to at paragraphs 84 and 85 – there was a clear distinction made by the trial judge between the record of interview and the fact that the applicant did not give evidence.  So, the difference between the two was expressly drawn to the jury’s attention. The fact that he gave a record of interview, in my respectful submission, could not, as a matter of logic, have affected the need for a direction in accordance with what was considered to be highly desirable by the majority in Azzopardi. 

The third submission also relates to one of the factors referred to in paragraph 87 in that second sentence.  They are the directions that I have already taken your Honours to at paragraphs 84 and 85.  I think I have already made the submission that we rely upon what Justice Mazza said.

GAGELER J:   So, ultimately, we are concerned with whether a miscarriage of justice has occurred by reason of the absence of an Azzopardi direction. 

MR VANDONGEN:   That is exactly right, your Honour. 

GAGELER J:   Do you now put the perceptible risk of the jury reasoning by an improper method differently from the way it is recorded in paragraph 86 of the joint judgment?

MR VANDONGEN:   I do.  I develop that in this way.  The improper inference that might have been drawn by the jury in this case absent a direction can perhaps be expressed in two ways.  One is that he knew…..guilty.  Therefore, he did not give evidence regardless of what he said in the record of evidence.

GAGELER J:    Could you please state that again?  There was a blip in transmission in your last sentence.

MR VANDONGEN:   I am sorry, your Honour.

GAGELER J:   No, it is not your fault.

MR VANDONGEN:   The inference that the jury might have drawn, or the risk that the jury might have drawn the inference that, by not giving evidence, he knew that he was guilty regardless of what he said in the record of interview and secondly, an inference might have been ‑ ‑ ‑

GAGELER J:   Is that not covered by the Liberato direction?

MR VANDONGEN:   No because the Liberato direction is concerned with a different risk – that is, the risk that the jury might think that a rejection, relevantly here a rejection of the record of interview, would automatically lead to a conclusion of guilt.

I attempted to make the point earlier that, in reasoning in that way, there is a risk in this case and in many cases of conducting that reasoning pregnant with the idea that something can be gleaned from the fact that the applicant did not give evidence – that is, as part of the reasoning process leading to a conclusion of rejection, the fact that the applicant did not give evidence might be taken into – there is a risk the jury might take that into account in reasoning towards that conclusion.

GAGELER J:   I cut you off.  I think you said there were two ways you put the risk.

MR VANDONGEN:   There were two ways.  One was a plain realisation of guilt and the other was an inference that the applicant realised that the account that he gave in the record of interview was not credible and that it was not credible and that that would be explored and shown to be so if he was to give evidence and subject himself to cross‑examination.

In my respectful submission, those two inferences, at the very least, were open to the jury to draw and those inferences were impermissible.  Those inferences were available to the jury to use in rejecting the video record of interview or concluding more generally, in whatever process of reasoning they engaged in, that the applicant was guilty.

GAGELER J:   It may be subtle, but it does seem like a significantly different argument from that which was put to the Court of Appeal.

MR VANDONGEN:   It is not significantly different.  It is just a different way of dealing with the inferences that the jury may have drawn and the risks that they may have drawn those inferences.

EDELMAN J:   Is your argument any different from the reasoning of Justice Mazza?

MR VANDONGEN:   No, your Honours.  In fact, you would have noted from our submissions that we rely very heavily upon the reasoning processes his Honour Justice Mazza engaged in.  In that regard, can I finally refer your Honours to paragraph 223, which is at page 124 of the application book.  I made the submission earlier that the Azzopardi direction is concerned with the consequences of the exercise of the right to silence and that is precisely the point that is made by Justice Mazza at paragraph 223.

For those reasons, in our submission, perhaps if I could add to that one further submission by way of reference to the observations made by Justice Mazza at the top of page 125 of the application book, in paragraph 226, where his Honour makes the additional point that the risk in this case was heightened because what occurred here was that on the date of the alleged offence the child witness was interviewed and that interview was recorded.

On a subsequent date, she was giving evidence in court, albeit by way of a recording.  During the course of that recording she was asked to, and she did adopt under oath the truthfulness of the recording that had been previously made on the date of the alleged offence.

His Honour Justice Mazza makes the point which we support, with respect, that that did not occur in the applicant’s case.  You had, in the complainant’s position, two videos, one of which was adopted on oath, and in the applicant’s case, a video which was not adopted on oath.  That, that juxtaposition, to use the words “the stark contrast” that were used by Justice Mazza, we also submit were likely to lead the jury to adopt a path of reasoning that they could use the applicant’s silence in court to his detriment.

For those reasons, in our respectful submission, the minority judgment of Justice Mazza is correct.  There was a perceptible risk that the jury might misuse the fact that the applicant did not give evidence, and that risk was not ameliorated by the factors that were relied upon by the majority.  In our respectful submission, the failure to give a warning occasioned a miscarriage of justice in this particular case.

GAGELER J:   Thank you.

MR VANDONGEN:   Those are my submissions.

GAGELER J:   Mr Fox.

MR FOX:   Your Honours, in the respondent’s submission there is no special leave point being raised.  The issue is confined to the administration of justice in this case, in circumstances where, as my friend correctly noted, it was common ground in the court below both between the parties and between the majority and the minority that the directions that were given were defective. 

All that occurred below was that the majority and the minority reached a different outcome in evaluating whether there was a perceptible risk on the particular facts of this case, and the unique nature of the directions that were given, where there was a perceptible risk of a miscarriage of justice.

EDELMAN J:   Mr Fox, do you say that, or can you point to, any case where an Azzopardi direction, or the lack of an Azzopardi direction, has been held not to amount to a miscarriage of justice, where it is effectively a word‑upon‑word case?  In other words, putting aside circumstances like pure documentary cases where the failure of an accused person to give evidence might be thought to be very peripheral to the jury, to the jury’s assessment, in cases where credibility and reliability is a central issue in relation to oral evidence that could be given by central parties, is there any case where an Azzopardi- or the lack of an Azzopardi direction has been held not to amount to a miscarriage?

MR FOX:   On the scenario that your Honour Justice Edelman puts to me, no, I cannot draw the Court’s attention to any particular case.  That said, there are a number of features of this case, of the evidence, that are different to those of the cases that are summarised by the majority in its reasons.  These are a number of factors that do not give rise to any heightened need for Azzopardi direction in this case. 

This is not a case where there were any co‑accused, or where there were defence witnesses other than the accused being called, where there would be a stark contrast between the accused not giving evidence and those other witnesses giving evidence, and significantly, which is a feature relevant to a number of the cases that are summarised by the majority, there was the interview, in this case, but it is not just the mere fact of the interview, its contents and how it was used by the defence at trial are significant. 

It did not merely contain just a denial of the defending.  It was a denial that formed the basis of the defence case, and it is not as if the defence case departed from the version of events that were given in that interview.  It is also a comprehensive account on the applicant’s part, not just of his denial, but all of the relevant surrounding circumstances. 

It is also the case that during the course of that interview, what would effectively become the prosecution case at trial was squarely put to the applicant during the course of his interview.  Also the prosecution did not suggest that the interview contained consciousness of guilt, lies or some other feature or aspect that might have sensibly called for some explanation by way of viva voce evidence from the applicant at trial.

GAGELER J:   So what we had here was the complainant’s evidence before the jury by video, and the applicant’s evidence before the jury by video.  But you have that added factor that is referred to in paragraph 226 of Justice Mazza’s judgment, do you not?

MR FOX:   Yes.  The answer to that proposition, in my submission, is that there were at least about five different species of evidence during the course of this trial.  You had the complainant’s initial interview with police officers, not the officers that conducted the appellant’s interview – that was the first part, forming the bulk of her evidence‑in‑chief.

You then have her pre‑recorded evidence on oath, but which were not…..of the jury before a different judge involving a different prosecutor and a different defence lawyer.  That was the second aspect of the evidence, the second species of evidence.

You had the viva voce evidence at trial of the mother and the investigating officer, the third aspect; a clandestine recording between the complainant’s mother and the accused, that is the fourth; and the applicant’s interview was the fifth type of evidence.

I make a point of those different species of evidence because nothing was said to the jury to suggest that in any way, shape or form one species of evidence ought to be given greater weight or taken account of differently than any other species of evidence.

EDELMAN J:   Although as Mr Vandongen points out, the trial judge did direct the jury or draw the jury’s attention to the fact that the appellant had not given sworn evidence.

MR FOX:   She did, yes.  I appreciate there is that confused, unfinished statement to the effect that he was not to be treated any differently.  But with respect to his video, there was no direction in accordance with Mule v The Queen to the effect that the jury could give the denials in his interview any lesser weight.  So other than that one point that your Honour Justice Edelman just put to me, there was no point of any distinction made between the different types of evidence.

If I may turn to the directions, the jury were, nonetheless, told they did not have to give evidence.  That was repeatedly said.  He was entirely within his rights to do so.  There is that incomplete passage that he should not be treated in any different way because of that fact.  But, immediately after her Honour dealt with those aspects of the charge, her Honour directed the jury about where there had been a departure from the right to silence in this case and emphasised that the applicant did not have to speak to the police and, importantly, that in speaking to the police he did not on his part assume any burden simply because of the fact that he chose to speak to the police. 

That proposition about him not having assumed any burden to prove anything by the fact that he chose…..to the police was repeated again just prior to the Liberato direction being given, reiterating that he did not have to give evidence in his trial, but he did choose to give his - and I use her Honour’s word - “version” of events to the police. 

The Liberato direction, in my submission, yes, as my friend rightly points out, a Liberato direction and an Azzopardi direction are directed at different things, although, they are both aspects of the presumption of innocence.  But, in the context of this case, the Liberato direction had a broader, practical effect than might otherwise have been intended. 

We make that submission because by their verdict the jury must have concluded that this applicant’s account in his interview was either untruthful or unreliable.  The jury were expressly told that if they reached that point, if they positively rejected his interview, his version of events, that that positive rejection was to be put to one side and disregarded and they still had to nonetheless assess whether the prosecution had proved its case on its evidence beyond reasonable doubt, putting to one side everything that the applicant had said. 

In my submission, there is no perceptible risk that the jury could then go on to reason that having rejected the account in his evidence – sorry, the account of his interview, having been told what they must do if they reached that point which was to put to one side, return back to the prosecution case. 

The fact that he chose to exercise his right to silence at trial was not a matter that in any way they could conceivably use against him despite the absence of the Azzopardi direction in this case.  That is because of the considerable emphasis that her Honour placed at various points of the charge on the importance of the presumption of innocence, his right to silence generally and the effect of the Liberato direction.  That is what guards ‑ ‑ ‑

GAGELER J:   What do you say about Justice Mazza’s judgment.  Is there an explanation for is his Honour’s approach?  Is it just a matter of his Honour giving different weight to different factors, or is there some underlying difference of philosophy or approach between his Honour and the majority?

MR FOX:   It is very much the former, your Honour, different weight to different factors.  There is certainly no difference of principle and approach in the judgment of Justice Mazza because the majority…..that the direction was defective and Justice Mazza places particular weight as a factor giving rise to a heightened risk, being the point that the complainant’s evidence was repeated on oath, but the applicant’s was not.  That is a key part of Justice Mazza’s reasoning, which does not carry that weight that it does in that judgment for the reasons that I have outlined to the effect that there were many species of evidence during the course of this trial.  May it please the Court, those are the respondent’s submissions.

GAGELER J:   Thank you, Mr Fox.  Mr Vandongen, do you have anything in reply. 

MR VANDONGEN:   Three things, your Honours.  The first point is in relation to the submission that there was no distinction made between the types of evidence by the trial judge.  Could I ask your Honours to turn to page 8 of the application book, and these are in the directions that were given by the trial judge, and it is in that part of the directions that are familiar to your Honours, that is, in directions talking about what is evidence and what is not evidence.

You can see in those passages leading down to about line 20 a distinction made between the complainant, whose name I will not mention, the fact that she gave evidence and the evidence included her “child witness

interview”, but her evidence was also contained in the “prerecording” where she was “cross-examined”.  So both of those things amount to her evidence.

There is a reference made to evidence given by other people from the “witness box”, that is, the mother and detective.  When it comes to dealing with the evidence, if you like, of the video record of interview they are described as exhibits - “Exhibit C” - and there is no reference made there by way of distinguishing – it is evident from that passage that there is a clear distinguishment made between the types of evidence for the jury to rely upon. 

Secondly, in terms of the Liberato direction, can I just repeat – perhaps more eloquently than I did before – that the Liberato direction did not alleviate the potential for, for example, the jury using the fact that the applicant remained silent in the process of reasoning to rejecting what he said in the record of interview.  By drawing an adverse inference to him impermissibly, reasoned, therefore, that we ought reject what he said in that record of interview. 

Finally, the third point is in relation to the point your Honour Justice Gageler just put to my learned friend about whether Justice Mazza’s approach is one of weight – difference of weight or difference of approach.  Can I ask your Honours to turn to page 124 of the application book?  I have taken you to these passages before.  Paragraph 223, is not, in my respectful submission, giving different weight to different factors.  It is a different approach – and a principled approach – taking into account the difference between telling a jury about the right to silence and telling the jury – or, in this case, not telling the jury – about the consequences of the exercise of that right.  

Secondly, over the page, at page 125, at paragraph 227 – again, another passage I have taken your Honours to – it, in my respectful submission, could not be said that that is a difference – an application of differences of weight by application of principle.  Those are my submissions in reply, if your Honours please.

GAGELER J:   We will retire for a moment to consider the course we will take in this matter.

AT 12.33 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.36 PM:

GAGELER J:   This application will be referred to an enlarged Bench to be dealt with as if on an appeal.  The parties should proceed on the basis that the hearing before the enlarged Bench will be conducted in accordance with the rules that would ordinarily govern an appeal, and for the purpose of written submissions the timetable should proceed on the basis as if a notice of appeal were filed today.

The Court will now adjourn to 9.30 tomorrow.

AT 12.37 PM THE MATTER WAS CONCLUDED