Grant v The Queen

[2007] HCATrans 255

[2007] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A5 of 2007

B e t w e e n -

JAMES AXCZEL GRANT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 25 MAY 2007, AT 2.34 PM

Copyright in the High Court of Australia

MR N.M. VADASZ:   If it please the Court, I appear for the applicant.  (instructed by Vadasz Lawyers)

MR S.P. PALLARAS, QC:  If it please the Court, I appear with MR A.B. ALLEN for the respondent.  (instructed by Director of Public Prosecutions (SA))

MR VADASZ:   There are two primary issues in this application.  One goes to the requirement as to directions as to the burden of proof.  The other goes to the trial judge’s summing-up of the defence case.

KIRBY J:   Justice Vanstone’s dissent is limited to the first point, is it not?

MR VADASZ:   No, to both points.

KIRBY J:   Her dissent is limited to the second point, the balance and fairness of the summing-up. 

MR VADASZ:   Only to the extent that his Honour Justice Doyle agreed with the first point.

KIRBY J:   Anyway, you develop your argument and we will know a lot more about it then, we hope.

MR VADASZ:   That was to be the very aspect of my argument.  The factual scenario is set out at pages 81 to 82 of the application book and also in the judgment of his Honour Justice Grant and her Honour Justice Vanstone at application book page 69.  Paragraph 20 sets out the gravamen of the defence case in the paragraph at line 20.  This was a circumstantial case reliant almost entirely on the applicant’s ownership of a vehicle used in the robbery and certain items found in that vehicle.  When the vehicle was subsequently found, a man called Rigney was asleep behind the wheel. 

The accused did not give evidence, although at the time of his arrest he gave a very detailed record of interview and in that record of interview he gave very detailed explanations as to selling the car, who bought it, leaving behind certain items in the car, some of those items incriminating.  The fact that Rigney was connected with the robbery was later substantiated by DNA left on scissors in the vehicle used to actually commit the robbery with the theory being the second vehicle.....found asleep.....getaway car parked around the corner.....was a circumstantial case.

His Honour Justice Doyle found that the learned trial judge misdirected himself on the question of burden of proof, application book 51, paragraph 20:

I share the reservation expressed by Vanstone J about the manner in which the Judge expressed himself in the first of those passages.

There are two passages that were complained about.....and again, at paragraph 40 on the same page, second passage, he said:

Again, I agree with Vanstone J that the manner in which the Judge expressed himself was undesirable.

His Honour Justice Gray found that overall the summing-up, as did the Chief Justice, on the question of burden of proof was adequate and the first special reason issue is the circumstances in which there might be errors.....summing-up on fundamentally important points such as the burden of proof that ‑ ‑ ‑

KIRBY J:   It may have been fundamental but counsel appearing at the trial did not take any point on this, he did not notice it.

MR VADASZ:   Sometimes counsel at the trial is not, as should be expected, as wise as a trial judge or as learned and might not pick up these points until later but I take your Honour’s point, no objection was taken.

KIRBY J:   In part, my reaction to the argument, at least so far, is that the first point is a slip but in the context it is not material but that the balance of the summing-up and whether that was a fair presentation of the defence case is a much more arguable proposition, as Justice Vanstone said in her dissent.

MR VADASZ:   That is a point I would seek to pursue and a point of special importance.  There were two errors as to the direction of burden of proof and her Honour Justice Vanstone found the first one to be benign but the second one to be far more serious and significant.  Whether the court erred in finding an overall – notwithstanding the significance of the error or errors – impression was one in which the jury would not have been mistaken about the burden of proof.  The second error, which occurs at page 28 of the application book, fundamentally.....the burden of proof at paragraph 30:

You have heard Mr Vadasz’s submissions to you and the interview the accused gave to the police.  Do the explanations offered constitute inferences which reasonably arise from the evidence before you and, if so, do they give rise to a reasonable doubt about his guilt? 

KIRBY J:   This particular learned trial judge seems to have a technique of putting the defence argument and then adding a sentence “you may wonder”.  He has done that a couple of times here.  What does Whittingham say in South Australia about putting the defence case and then following it immediately with disparaging comments?

MR VADASZ:   Chief Justice King says at the bottom of page 69:

I have expressed the view on other occasions that a defence is not properly put to a jury, generally speaking, if the material which is put forward by the defence is referred to in a way which is intermingled with disparaging and adverse comments upon it.

KIRBY J:   We do not seem to have Whittingham.

MR VADASZ:   Whittingham is in the respondent’s book of cases and it is the second last case in the respondent’s table of cases, the last case being Stokes.

KIRBY J:   What did the Court of Criminal Appeal say of your appeal to Whittingham in this case?  How did the majority explain that they felt that this style of summing-up was acceptable in this case?

MR VADASZ:   In two ways, at application book 52, paragraph 20 the Chief Justice said:

I again agree with Vanstone J that it would have been better if, as she puts it, the Judge had “encapsulated the defence case” and had “put the main defence arguments to the jury”.

That and the following larger paragraph are the only references to the summing-up.  His Honour the Chief Justice made no reference that I can see as to the disparaging aspects of the summing-up.  I might draw the Court’s attention to those disparaging aspects without going through them at this stage and they are set out at application book 84 and 85 of the brief statement of applicant’s argument. 

His Honour Justice Gray does not seem to have covered it at all except at application book 63.  Paragraphs 10 and 20 make reference to it and, with the greatest of respect, makes reference in error.  He says at paragraph 20: 

There was no inadequacy or error of fact in the Judge’s discussion of these items of evidence.

Here I say there is the potential for error at least:

The Judge did not withdraw the items of evidence from the jury’s consideration.

By way of example, at application book page 22 ‑ ‑ ‑

KIRBY J:   You have the list of them on page 84.

MR VADASZ:   I have the list.

KIRBY J:   The judge identifies what the defence says, very briefly, and then goes on to say, “you may not find”, “you may wonder”, “you may find”, “you may wonder”, “you may wonder” and the defence case does not really get a fair chance for the jury to assess it.  That is the argument.

MR VADASZ:   That is the argument.

KIRBY J:   That is what Justice Vanstone found to have been unfair. 

MR VADASZ:   In fact, the learned trial judge went further and talked about aspects of the ‑ ‑ ‑

KIRBY J:   Can I be blunt to you.  The problem I have with the case is that on the appearance it looks a pretty strong prosecution case against your client.  I realise that even a person who has a strong case against them has a right to a fair trial but it is not a case that, as it were, screams out as a miscarriage of justice, if I can put it that way, except in the sense that the judge did not really leave your case for the jury, he added his own comments on each and every point that had been put up.

MR VADASZ:   The question arises whether there has been a miscarriage of justice in circumstances where.....been a fair trial.....trial miscarried because.....but, if I might beg to differ, at first glance this may have been a strong circumstantial case inasmuch as the man’s ‑ ‑ ‑

KIRBY J:   It was his car and there were his things in it.

MR VADASZ:   As one would expect to find in his car, but at the very outset and without hesitation and, in fact, if the record of interview were to be inspected, over the advice of his lawyer to remain silent, Grant gave detailed explanations as to what happened.....vehicle, the circumstances in which he came to sell his vehicle, how he left something in the car, what he thought might have happened to his keys and who bought the car and, lo and behold, three days later a man matching the description of the purchaser is found asleep in the car.....registration of transfer in the car and his DNA on the actual van used in the robbery.

If I might just refer back to her Honour Justice Vanstone at application book 69 at paragraph 20, her Honour very neatly encapsulated the prosecution and defence case and the issue for the jury far neater than I could possibly do justice.  If one looks at it from that point of view rather than simply taking the prosecution case at the outset, one takes into account the explanation and the reasonable hypothesis consistent with innocence; it was not at the end of the day a strong prosecution case.  It was a strong prosecution case only in the absence of an explanation.  The presentation of a cogent explanation made it a case in which the accused was in fact entitled to an acquittal.

KIRBY J:   Of course, your client did not give evidence but relied on the police interview.

MR VADASZ:   Relied on a very lengthy police interview that was tendered by the Crown and played to the jury, yes.  He did not exercise his right to silence in the first instance but remained silent, as was his right, at the trial and with possible nuances there was little to add.....I believe I have covered 2.1 and 2.3.  The only other remaining issue is 2.2 in the ‑ ‑ ‑

KIRBY J:   Look at it from the point of view of this Court, if the matter is a matter of concern of the balance of the judge’s summing-up to the jury and the fair presentation of the defence case and the blemishes that you point to here, we have the case of Whittingham which lays down a correct principle that a judge should not discourage.  We had the observations of the judges of the Court of Criminal Appeal saying it would have been better if he had not and Justice Vanstone saying, “It is so bad I would require a retrial”, so there is nothing for us really to say anything new or different, is there, in the High Court?

MR VADASZ:   I think this is an appropriate vehicle, if your Honour pleases, for two reasons.  One is the Whittingham question not clearly stated elsewhere and coupled with the issue raised by her Honour Justice Vanstone as to whether or not there is a requirement.....distinctly and separately encapsulate, albeit briefly, the case for the defence and its arguments.  It is my submission that that in itself is a truer point.  The other which I respectfully suggests requires clarification and it is of special importance relates to the extent to which a trial judge might make an error on a fundamental point in his charge to the jury but that error can be somehow remedied by the overall blanket effect of his summing-up and whether or not there are errors as to the burden of proof, as there are here, for example, errors that are so fatal to a fair trial that no amount of other directions, correct directions, can rectify those.  That, in my respectful submission, is a.....point.

The other matter that I have raised in the notice relates to a direction by the trial judge that the assertions by Grant in the record of interview, the assertions of fact, were in fact inferences to be.....the use of the word “inferences” in cases such as Chamberlain, Peacock and others.  His Honour Justice Gray had this to say – I will very quickly find the passage in a moment – his Honour Justice Gray simply said that.....no difference between the two words.  Her Honour Justice Vanstone found that it was an error.....talk about the applicant’s assertions in terms of inferences.  If it please the Court.

GUMMOW J:   Thank you.  Yes, Mr Pallaras.

KIRBY J:   Mr Pallaras, it is not really a model summing-up, is it?

MR PALLARAS:   No, your Honour, it is not.  It is, however, the submission of the respondent that what this case is ultimately about is balance and ultimately whether it tips the balance in favour of, as the Court of Appeal have found, an adequate judgment or whether, as Justice Vanstone found, it resulted in an unfairness to the accused.  Our response obviously and clearly is that this is a judgment which, although it does have its faults and they have been described by my learned friend, when it is read and when it is taken in its context and fully in context, that the errors that have been pointed out are not so significant so as to, in effect, poison the whole well of the judgment. 

The concerns that my learned friend expressed about the intervention of the learned trial judge with his comments at the end, in effect, amount to one intervention, if I may put it that way.  I make that submission because, in our submission, what defence counsel was seeking to do in pointing out the various items that now form the list of complaints, the jumper leads and the scissors, et cetera, the balaclava, was seeking to make a submission which, we would respectfully suggest, was neither legally nor logically correct and that is that the absence of various pieces of evidence somehow exonerated – and I think that was the word that learned counsel used – his client. 

In responding to that, even though it related to separate pieces of evidence, the learned trial judge was entitled, in our respectful submission, to correct what would be an overstatement both in law and in logic and that it could not ever serve to exonerate this person.  It may be a matter for comment but that is not the appropriate comment that could be made from it.  Basically, again, our response is that this is in balance, no miscarriage of justice has occurred, that no special leave point has arisen either from the papers or from my learned friend’s submissions and that all that has been described is a difference of view in the Court of Appeal and one is now asked through the application to express a different opinion on an established legal principle. 

If there is no apparent miscarriage of justice on the material, and we submit that there is none, a good indication of that, again, is the lack of a request at the end of the learned trial judge’s summing-up to the jury for redirections.      One might get a flavour of how the trial was conducted in that instance from that fact, it is not a complete answer of course but it might be indicative, and when one looks at the manner in which the learned trial judge dealt with the defence, ultimately it was this.  He was confronted with an accused who gave no evidence.  He then had before him a case which was, by agreement it seems, fought on the issue of identification and that matter is referred to at application book page 9 at line 42:

Both counsel have approached this case on the basis that it is really about identity; about the question of whether this particular accused, Mr Grant, was involved in the robbery –

The issue was confined; it was confined to an issue of identification.  There was no evidence given by the accused at trial, and your Honours have heard a lengthy record of interview was tendered which I think was described as fairly difficult to follow in some respects.  What the learned trial judge then did in his summing-up to the jury was that he followed the course that was adopted by defence counsel in the sense that he then went through in the same order as defence counsel addressed the jury mentioning the pertinent points that were raised by defence counsel to the jury as bearing upon guilt or innocence of the accused. 

In that situation it is difficult to imagine what else the judge might have done.  He may have framed it more elegantly and, as her Honour Justice Vanstone indicated, may have summarised it more concisely and more particularly, but all of the points that were thought relevant to be an issue to the defence certainly were raised by the learned trial judge in his charge to the jury and he did say, as I say, in the same order that counsel did.  The comments that he makes – your Honours have referred to and my learned friend has referred to – if seen in the context of objecting to the logic of the argument that was put, then really it comes down to a trial judge appropriately, as he is entitled to do, correcting a statement that might be excessive or a proposition that may be unwarranted. 

In our submission, that is all the learned trial judge has done.  He has done it perhaps more times than he needed to but in the outcome the issue that was being addressed was the same in each case, whether the absence of evidence could ever exonerate the views of the applicant.  It is our submission that the learned trial judge was right to do so.....was the issues raised were the same.

Your Honour Justice Kirby started by indicating that it was not a model direction and, of course, we can clearly see that that is the case.  The words that have been impugned principally are the word “establish” in establishing a reasonable doubt and the phrase “do they give rise to a reasonable doubt” and the Court of Criminal Appeal have clearly said that they are not the best choice of words in the circumstance, and I do not certainly resile from that.  But, again, our submission has to be in this type of a point that on balance there is no special leave point raised because of the balance of the direction being clear and, we submit, therefore no miscarriage of justice. 

KIRBY J:   It is really a question of whether the fact that Justice Vanstone was moved to dissent and express her opinion in that way and the view that the majority have held is an indication that this Court’s intervention is required in a sense to reinforce what Justice Vanstone says. 

MR PALLARAS:  Your Honour, with respect, I would say no, otherwise what this honourable Court would then be doing would be adopting perhaps the role of the Court of Criminal Appeal if no specific issue is being raised here that initially would justify the granting of leave because that is basically what this request or this application is.  It is to ask this Court to say that Justice Vanstone was correct and the majority were not without actually identifying why it is, or without indicating that the actual decision of the Court of Criminal Appeal was attended with any degree of doubt as to its correctness.  They are different views on the balance of the judgment.  In my respectful submission, it would not be an appropriate issue for this honourable Court to become involved in.

GUMMOW J:   Yes, thank you, Mr Pallaras.

MR PALLARAS:   Unless I can assist, thank you.

GUMMOW J:   Thank you very much.  Anything in reply?

MR VADASZ:   A couple of matters, if I may.  The learned director said that the Court of Criminal Appeal said that.....not the best choice of words.  In actual fact, two judges of the Court said that the directions as to onus of proof amounted to a misdirection.  Again I say that there is a question for this Court to consider when.....the majority can find that there is a misdirection.....fundamental point but, nevertheless, dismiss the appeal.  The learned director addressed the question that the trial judge ‑ ‑ ‑

KIRBY J:   It is on a fundamental issue but in the context in a sense it is cleared up by what immediately follows and no objection was taken at the trial.  That rather suggests that it was understood at the trial as being cleared

up by what immediately followed what the trial judge had said after the so‑called misdirection.

MR VADASZ:   There is an inference there but can I say that those words did come at the very end of the trial and what then followed was discussion about other issues that at the time in the eyes of counsel loomed larger than what had just been said earlier and possibly, if the words at application book 28 had come at an earlier stage, it might have been better time to reconsider the position.  The director indicated that the learned trial judge responded to counsel’s address to the jury.  He went on to say that it was difficult to know what the learned trial judge could have done. 

The short answer to that comes in Justice Vanstone’s dissenting judgment the he could have put the defence case and, rather alarmingly, this is a matter in which, I submit, two judges of the South Australian Court of Criminal Appeal fundamentally agreed that the defence case was not put to the jury.....nevertheless found that there was no miscarriage of justice.  Again, in my submission, it is point that is a proper vehicle for.....

GUMMOW J:   Thank you.

There is much to be said for the dissenting reasons of Justice Vanstone in the Court of Criminal Appeal in this matter.  On one view there was a slip in the expression “of the burden of proof”.  There was also the inclusion of several disparaging comments by the learned trial judge when charging the jury on the defence case.

However, the intervention of this Court is not required to express the applicable law which is clear.  In South Australia the decision of the Supreme Court in The Queen v Whittingham (1988) 49 SASR 67 at 69 correctly discourages the expression of the defence case intermingled with disparaging and adverse comments upon it.

In the end, we are not convinced that a miscarriage of justice has occurred, nor do we consider that an appeal to this Court would enjoy reasonable prospects of success in setting aside the judgment of the South Australian Court of Criminal Appeal.

Accordingly, special leave is refused.

AT 3.06 PM THE MATTER WAS CONCLUDED