Green v The Queen

[2004] HCATrans 451

[2004] HCATrans 451

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B91 of 2003

B e t w e e n -

RUSSELL PATRICK GREEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 2.24 PM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear with my learned colleague, MR F.G. CONNOLLY, for the applicant.  (instructed by R.J. Cutler)

MR M.J. COPLEY:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

HAYNE J:   Yes, Mr Byrne.

MR BYRNE:   May your Honours please, the present application is based on what is said to be a personal miscarriage of justice suffered by the applicant.  That miscarriage is premised upon, firstly, the failure of forensic testing in his case.  Your Honours would have seen that there was evidence which could have been crucial.  It involved testing of a towelette for DNA, and taking of fingernail clippings, which were not done.

The failure to test the towelette was in the context of the applicant specifically asking police to do so, and the first police officer on the scene agreed to do that and it was forwarded to the forensic laboratory but tests were not conducted.  The lack of the fingernail clippings was not even the subject of directions by the trial judge.

HAYNE J:   Now, were these two subject matters subject matters which trial counsel for the defence made something of in the course of addressing the jury?

MR BYRNE:   Certainly, they were ‑ ‑ ‑

HAYNE J:   I would have thought it would have been with an accompaniment of a full brass band, would it not, Mr Byrne?

MR BYRNE:   My colleague who, for want of a better term, juniors me was trial counsel and one can rest assured he would have done so, your Honour.

CALLINAN J:   Is there any more experienced trial counsel in Queensland?

MR BYRNE:   I checked before coming here.  He is number one in the list of seniority.

HAYNE J:   Then where is the miscarriage?

MR BYRNE:   The miscarriage, your Honours, is against the background of that testing one would therefore expect that the learned trial judge, particularly confronted with experienced trial counsel, would be scrupulous in his instructions to the jury as to the issues in the trial.

What happened here was that there was, as your Honours would have seen from a brief look at the transcript, the jury’s task was made, if anything, more difficult because of the divergent accounts given on one side by the complainant in the Crown case, and on the other side by the applicant and the witnesses called on his behalf.  Therefore, it is submitted that the jury and a fortiori the applicant were entitled to proper assistance from the trial judge in the form of the instructions given.

In particular, we say that as was recognised by five members of this honourable Court in RPS v The Queen (2000) 199 CLR 620 it was fundamental to such assistance to the jury to remind the jury of the arguments of counsel. Here, the relevant passage in the summing up appears at page 89 of the record book, commencing at about line 53. His Honour said this:

Now, I don’t propose to canvass the arguments of counsel.  They were lengthy and diffuse and are fresh in your minds.  If I start dealing with any of those arguments you may tend to focus on the ones I deal with and not others, and, frankly, I can’t recall anything of those arguments in their entirety.  But I should tell you that the arguments are not evidence.  Those submissions put to you are simply arguments that you may accept or reject as you see fit.

Now, as your Honour Justice Hayne put to me, experienced defence counsel would have, with a brass band and accompaniments, been making arguments and points to the jury.  This is a case which, in our respectful submission, therefore cried out for the trial judge to at least reiterate, as was said to be the required course in RPS, to the jury what those arguments were.

It was, in our respectful submission, unfair and resulted in miscarriage for the Court of Appeal to dismiss that flaw in the summing up by saying – this appears for the record at appeal book 129:

That is not the best way of directing a jury with respect to the relevance of counsel’s addresses –

In our respectful submission, it goes much further than being not the best way.  It goes to being something which is unfair and leading to injustice.  In addition, we say that despite the defence case consisting of evidence from the applicant and six other witnesses, the only reference in the judge’s summing up was to the evidence of the applicant himself.  No mention is made of the evidence of the other witnesses called.  There was one reference to the applicant’s mother having given evidence.  What the learned trial judge said was:

That’s a matter for you how reliable you found her evidence.  And how much of it is tainted by her love of her son or by discussions with him.”

So we say there is not the transparent fairness and balance that one would expect in a trial such as this.

Further, and finally on that issue, we say that where the directions given between competing accounts, there was a necessity for there to be a direction given in accordance with drawing inferences, that is for the jury to draw an inference, it must be if there are more than one inference reasonably open, they must draw the one that is favourable to the accused person.

Such a direction – it is not in contention – was not given, and we say in response to our friend’s written submission that such a direction is a requirement whether or not the case is one of circumstantial evidence, and indeed, in a case involving solely circumstantial evidence, further directions are required.

The last aspect which we raise which is set out in (d) in our grounds and in the written outline is the exclusion by the trial judge of the, what is known in Queensland as a section 93B videotape.  That is in this context, it was a significant part of the defence case that the complainant was motivated to give false evidence in order to retain custody of the five‑year‑old child which was hers and the applicant’s.  That motivation, it was sought to be made at trial, was fuelled by the son having been recorded on videotape by the police alleging that he had been injected with a substance either by the complainant or in her presence.

Accordingly, in that context, and in the context of the contest at trial, that was an issue of some relevance.  Indeed, the trial judge considered it to be relevant, and that appears at application book 18.  However, he excluded the videotape but allowed other secondary evidence on that point, ultimately directing the jury – and this is also at page 18 of the application book about line 50:

We simply are not in possession of sufficient material on that topic to enable any firm conclusion to be drawn as to whether or not the child was injured in that way.

HAYNE J:   What age was the child at the time of the incident and at the time of the videotape in question?

MR BYRNE:   The child was, as I understand it, in the order of five years of age.  I understand that to be ‑ ‑ ‑

HAYNE J:   That is consistent with my understanding.

MR BYRNE:   He was of that age but considered to be sufficiently cogent to allow the police to take the videotape.  The judge, as we have set out in our written outline, watched the videotape, and his initial impression was that it was cogent evidence, but he then decided to exclude it but to allow the secondary evidence as to opinions as to whether the injuries were consistent with needle‑stick injuries.

Our complaint then is that when one accumulates those factors against the background which we opened, that is the forensic failures, that this is a case which would give the Court concern that a personal miscarriage of justice has occurred to the applicant.  Those are our submissions.

HAYNE J:   Thank you, Mr Byrne.  We need not trouble you, Mr Copley. 

In our opinion, there are insufficient prospects of success in any appeal to warrant a grant of special leave to appeal, and we are not persuaded it is arguable that there has been any miscarriage of justice in this matter.  That being so, special leave to appeal is refused. 

Adjourn the Court to 10.15 on Tuesday, 16 November in Canberra. 

AT 2.33 PM THE MATTER WAS CONCLUDED