Goldman v The Queen

[2007] HCATrans 392

[2007] HCATrans 392

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M33 of 2007

B e t w e e n -

MICHAEL GOLDMAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 AUGUST 2007, AT 9.43 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER:   May it please the Court, I appear with my learned friend, MR L.C. CARTER, on behalf of the appellant.  (instructed by Grigor Lawyers)

MS C.M. QUIN:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Vic))

HAYNE J:   Yes, Mr Croucher.

MR CROUCHER:   If the Court pleases, it is submitted that the majority of the Court of Appeal erred in the following respects.  Firstly, it is submitted that the impugned direction did in fact implicitly single out the applicant’s evidence for special scrutiny.  As Justice Bongiorno said at page 235 of the application book at paragraph 104 of his Honour’s judgment, the:

direction had the unintended consequence of singling out the accused’s evidence for special scrutiny.  It would be sophistry to conclude that because it would be possible to characterise the judge’s direction as being critical to the defence of duress, not of the accused’s evidence, the principle in Robinson did not apply.  In this case the defence depended solely upon the evidence of the accused.  The question for the jury was whether the accused’s evidence raised a reasonable doubt as to whether he acted under duress or not when he shot K.  Close or special scrutiny of the defence meant close or special scrutiny of the accused’s evidence, because he would benefit from having that evidence accepted.  The indirect effect of his Honour’s direction was to place the evidence of the accused in a special category, thus offending the Robinson principle.

Secondly, it is respectfully submitted that even if the direction did not single out the applicant for no other reason than he was the accused, it is still fundamentally wrong.

HAYNE J:   Is his Honour Justice Bongiorno right to say that the accused man’s evidence was the only evidence that bore on the issue of duress?

MR CROUCHER:   It depends how you phrase that question, your Honour.

HAYNE J:   Exactly so.

MR CROUCHER:   The only evidence that would have supported the defence of duress in the end came from the applicant.  There was some independent evidence that supported the fact that Mr Radev might have been there.  The police expect that he might have been there.  Secondly, there was evidence of Mr Radev’s violent propensities, but otherwise there was no other evidence in support of the defence of duress.  True it is that a jury would consider the Crown case in rebutting the defence of duress, but in the end the evidence of duress came from the applicant and the applicant alone.  A direction of this kind, in our respectful submission, had the unintended effect of singling out the accused as a witness.  But as I say, even if that is not right, the direction was still fundamentally wrong for these reasons.  Firstly, it required that great care and scrutiny be given to the defence of duress and/or the evidence supporting it, which as I say ‑ ‑ ‑

HAYNE J:   No, the evidence relating to it.

MR CROUCHER:   Yes, that is what I said.  I am going back again to what his Honour says about that, but it is rather like an unsafe witness warning, an accomplice style warning, any of those sorts of warnings, they are never seen against an accused, that sort of direction.  Secondly, to say that the defence of duress can be an easy answer for those who can devise – and I interpolate – concoct, invent no innocent explanation for their conduct is, it is submitted, fundamentally wrong as well.  Taken together those two aspects of the direction with great care and scrutiny, and it has been an easy answer for those who cannot devise an innocent explanation, tended to cast a notice on the applicant to show that his defence was bona fide, tended to undermine the presumption of innocence which is the principal concern at which Robinson is aimed, in our respectful submission, and also tended to judicial endorsement of the Crown arguments against the applicant’s defence, namely, that it was concocted, invented, that sort of thing.

Further, it is submitted that the linking of the notion of its being an easy answer to the direction that those who allow themselves to be at the disposal or sway of some gangster, again directly undermined this applicant’s defence in this particular case because the evidence was that this person who threatened him was, of course, such a person, a gangster type and who had violent propensities.  So, for those reasons it is submitted that the direction is even a graver error than the impugned direction in Robinson, and the majority of the Court of Appeal, in our respectful submission, erred in failing to recognise that.

Secondly, the majority, it is submitted, also erred in considering the alternative that if the direction was erroneous, there is no miscarriage in this particular case.  Their Honours at page 216 of the application book, paragraphs 28 to 30, had this to say:

Finally, even if – contrary to our view – the impugned direction did infringe the Robinson principle, no miscarriage of justice occurred.  As we have pointed out, the version of events advanced by the applicant and which gave rise to the possibility of a defence of duress was so implausible that its rejection, and his consequent conviction by any reasonable jury, could be regarded as inevitable.

That is directly contrary to what this Court has said in Weiss about how to go about this question.  That is employing the any reasonable jury test which this Court in Weiss said should not be employed.  Instead, the Court said that there should be a return to the words of the statute and determining whether or not on all the material the Court of Appeal can be satisfied beyond reasonable doubt the person was guilty effectively; that is a paraphrase.  Yet in the very next paragraph, despite saying what they said there, their Honours say in paragraph 29:

We conclude with two general comments.  The first is that the principle for which Robinson stands is of fundamental importance.  Directions which are likely to have had the proscribed effect – of making the accused a suspect witness in his own case – are rightly to be treated as vitiating a guilty verdict.

HAYNE J:   Just going back to the first aspect of this argument about the proviso, what their Honours say at 28 has to be read in the light of paragraph 11, does it not?  Considered as a whole the evidence relating to the duress was most unconvincing.

MR CROUCHER:   Yes, but still applying the wrong test.  It is contrary to what was proscribed in Weiss.  In Weiss at paragraphs 35 to 40 of the joint judgment the Court expressly said that that approach is not the right way to approach the question.  Rather, the Court should consider – yes, your Honour, with respect, is right ‑ ‑ ‑

HAYNE J:   Consider the evidence as a whole I thought.

MR CROUCHER:   Yes, but you have got to take into account the natural limitations of proceeding on the record and what are they in this case?  The natural limitations in this case are that you have a case in which credit is all important.  If a case in which the accused is giving evidence about a state of mind defence – there was evidence in this case about how Mr Radev wanted to see the whites of the eyes of the man who was shot.  Well, the jury got to see the whites of the eyes of the applicant when he was giving evidence in this case.  A Court of Criminal Appeal never has that advantage and in a case like this would need that advantage when looking at him when he asserts what he says about the circumstances; was he frightened, was he fearing for his life?

HAYNE J:   Was Radev there?

MR CROUCHER:   Yes.  The jury were interested in this question, your Honours.  The jury were out for two days in this case, almost two days.  They asked for the evidence of the applicant to be reread on this question of what was happening outside the house towards the end, as the other witnesses around that time were, so they were considering this issue.  Obviously they would be considering that Radev was there for that purpose.

So it is submitted that had their Honours properly considered the proper way of going about the proviso, they should have said to themselves, well, we have to consider that we have limitations of proceeding on the record in this case because you have got a man giving evidence on his oath about a state of mind defence where seeing and hearing that particular witness, and for that matter the witness K, were very important benefits which we do not enjoy and therefore that is one of the limitations as to why we cannot apply the proviso and say that we are satisfied beyond reasonable doubt.

Secondly, they could not come to that conclusion, it is submitted, because one of the factors to which the Court directed the Courts of Criminal Appeal’s attention in considering this proviso question was the fact of a jury verdict, but the fact of a jury verdict in a case like this is of very little weight, it is respectfully submitted.  Why?  Because the direction went directly to the heart of his defence and undermined his defence.  If the jury has convicted a person through the strainer, if you like, of that sort of direction, then the verdict is of very little weight in the consideration of that question.

So for those reasons, that is applying Weiss in the usual way, which their Honours did not even consider.  But their Honours in paragraph 29, from which I read a moment ago, said that directions of this kind are rightly treated as vitiating a guilty verdict.  So what their Honours are saying there is, if there is in fact error, this is error of a fundamental kind that would go to the root of the proceedings, a la Robinson itself.  So that their Honours are saying, if we are wrong about the application of Robinson or something like it, then there is no resort to the proviso in a case like this.  That is the way in which, of course, Justice Bongiorno proceeded as well.

That then raises the question of what is indeed a fundamental error, the exceptions to which the joint judgment referred in Weiss that are yet to be considered in any detail, the Wilde v The Queen type test of going to the root of the proceedings and things like that.  I note that only two days ago in argument before this Court in a matter in which both your Honours Justice Hayne and Justice Heydon sat that there was a call for further submissions on that question of the residual effect, if you like, of those root of proceeding type matters and how they now are to be considered in light of Weiss.  In fact, I think your Honour Justice Heydon asked a question about it and Justice Kirby did as well.

This is the sort of case that raises that issue as well because, as we say, it is plain that their Honours proceeded on the assumption that this is the sort of error that gets into that category.  So that if indeed there is error, whether it be of the Robinson category precisely or whether it be of a Robinson like error, and we say it is more fundamental than that, then the conviction would have to be set aside.  So, if the Court were of that view, then it makes it a particularly attractive vehicle, in our respectful submission, despite the strength of the case.

Let me say something about the strength of the case.  Every case of duress, it must be so, will be a strong case by definition.  The nature of a defence of duress is more often than not an admission of at least the actus reus, if not the mens rea of the crime as well, so you are starting behind the eight ball in a forensic sense.  But to have a direction like this saying that duress is an easy answer for those who can devise no innocent explanation – and you have got to give it great care and scrutiny, a dangerous witness warning, to put a person even further behind the eight ball – is, as we say, it tends to reverse the onus of proof, it tends to undermine the presumption of innocence and it tends to endorse the Crown arguments and, in particular, the Crown arguments that were made in this particular case.

As to whether or not it is in fact an error, well, Justice Hunt with whom Chief Justice Gleeson and Justice Mahoney agree in Abusafiah, which we have referred your Honours to, a case which was decided before Robinson, held that if it were not a comment, that it would be erroneous, a direction of that style.  The direction that was given in Abusafiah was not as grave or as damaging as this one.  Of course, the Court of Appeal of New South Wales in that case ultimately said that pursuant to the criminal appeal rules because the point was not reserved it could not be relied on in the particular circumstances.

Three things about that.  As I say, this is a far graver example than Abusafiah.  Secondly, that was decided pre-Robinson where the Court had a lot more to say about this sort of nature of error.  Thirdly, as in Darkan which this Court dealt with recently on the question of the proviso, this was a case in which the direction was in the charge book.  Your Honours would realise that that is a Bench Book that is widely used in this State and, as Justice Bongiorno explained, seems to have been wrongly based on some remarks of the House of Lords in Lynch.  It is not surprising that counsel, given the evident source, if you like, in the circumstances, would not take exception to it.  The same point was said in Darkan to be a reason why you would not necessarily take exception and would not defeat the point.

In the end, Darkan, of course, turned on the question of a proviso, although it turned on the question of a proviso in circumstances where there were alternative paths to conviction.  No alternative paths to conviction here.  This was the only route through which there can be a conviction.  The Crown had to negative beyond reasonable doubt’s defence.  This defence was severely undermined by these directions.  There was no dispute from the majority or Justice Bongiorno that these were directions, unlike the doubt in Abusafiah, as to whether or not they might have been comments.

So, for all those reasons it is submitted that this is a matter that should attract a grant of special leave.  More recently as well, in Libke your Honours Justice Kirby and Justice Callinan in a joint judgment had something to say about the contours of Weiss’s case and how this might be sorted out.  Your Honour Justice Hayne also mentioned in passing, without resorting to the proviso because there was considered to be no error in the end, that courts must continue to apply Weiss until it is said otherwise.  What we are asking for is a proper application of Weiss. 

If this Court had found error, then they would have said pursuant to Wilde type reasoning, as they accepted in the majority, the conviction would be set aside.  Alternatively, if it is not fundamental error, then application of Weiss, limitations of proceeding on the record, considering that this man was giving evidence, the only real evidence in the end that mattered, that you could not apply the proviso because you could not be satisfied beyond reasonable doubt he was guilty because of the limitations of proceeding on the record.  May it please the Court, those are our submissions.

HAYNE J:   Yes, thank you, Mr Croucher.  We need not trouble you, Ms Quin. 

We are not persuaded that it is arguable that there has been a miscarriage of justice in this matter.  Special leave to appeal is refused.

AT 10.01 AM THE MATTER WAS CONCLUDED