Haddon v The Queen

[1998] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 1997

B e t w e e n -

IAN GEORGE HADDON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 MAY 1998, AT 10.15 AM

Copyright in the High Court of Australia

MR M.A. GREEN, QC:   May it please the Court, I appear for the applicant, your Honours, together with my learned friend, MR A.C. HAESLER.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales).

MR A.M. BLACKMORE:  I appear for the respondent with my learned friend, MR M.C. MARIEN.  (instructed by S.E. O’Connor, Solicitor for the Director of Public Prosecutions (New South Wales)).

McHUGH J:   Yes, Mr Green.

MR GREEN:   Your Honours, this initially raises an application for an extension of time in which to appeal.

McHUGH J:   Yes.  I think you might go to the merits of the point.

MR GREEN:   Apart from that, your Honours, the application in our submission, raises three points of general importance.  The first relates to the process which a judge sitting alone in a criminal trial in New South Wales ought to follow and demonstrate that he has followed in assessing the evidence before coming to a judgment on the guilt of an accused.

In this matter, your Honours, it was argued in the Court of Criminal Appeal that the trial judge in this case failed to weigh the sworn evidence and denials of the applicant in his consideration of the evidence of the complainant.  Indeed, this omission of the trial judge was acknowledged by the Court of Criminal Appeal and, indeed, the then Chief Judge at common law referred to it as the principal argument in the appeal.  That is at application book, page 23.

KIRBY J:   But he despatched it rather convincingly, I think, by saying that it would have been preferable.  It is hardly to be believed that a judge sitting alone, so soon after the testimony, would have overlooked the fact that the accused gave evidence on oath.

MR GREEN:   In this case our submission is, of course, is that it is perhaps not clear but it is quite doubtful, on a fair reading of the judge’s, if we might say so with respect, rather economic summing up or judgment that he omitted to do so.

KIRBY J:   But at least twice he has said on page 4, at point 45:

The Accused then went into evidence, he gave sworn evidence himself and he called his Sister -

and then at page 6, at line 50:

I take into account the matters urged upon me, however in addition to that that the Accused did not have to give any evidence at all.

MR GREEN:   But that is all he did, in our submission, and we say that that is not enough because the rest of his judgment indicates that he has not only considered it, he has not given it proper weight at all.  Merely for a judge, we say, to acknowledge, in other words to simply say what evidence - or to enumerate the points of evidence, is not enough.

KIRBY J:   I am with Chief Judge Hunt.  I agree it would have been obviously preferable that he had referred to it and probably also preferable that he had gone into some detail of referring to what the accused said.  But it is just not possible to infer from the absence of doing that that he did not take into account what the accused said.

MR GREEN:   Well, that is our point here, of course, your Honour.  The big step that his Honour the Chief Judge pointed to, of course, is well demonstrated here not to - is, in our argument, in this case, in this judgment, that step can be made.  Indeed - and, of course, the cases in which the Court of Criminal Appeal relied on, which I will come to in a little while, we say they represent an incomplete and unhelpful statement of law.  Indeed, we would suggest, with respect, that reading those judgments and on some anecdotal evidence of experience of judge alone trials, that the judge alone trial in New South Wales has reached a stage of almost being a protected species, that is in the way the Court of Criminal Appeal looks at it.

McHUGH J:   Well, it is understandable.  It would be a coincidence bordering on the fantastic if the failure of this judge not to have mentioned in detail the evidence of the accused, meant that he had not taken it into account.  This is an experienced trial judge who has just heard the evidence and he is giving judgment at 10 to five in the afternoon.  He would not expect his judgment to have the polish or the lucidity of a judgment of Justice Cardozo.  Obviously he will not dot every “i” and cross every “t”, but why is one driven to conclude that he did not take the accused’s evidence into account particularly when he referred to the fact that the accused gave sworn evidence, he call his sister and so on.

MR GREEN:   We do not ask your Honour for all the crossing of the “t’s” and dotting of the “i’s”.  We do not ask for that close scrutiny.  Indeed, in several occasions, Justice Sperling said this in the Court of Criminal Appeal that there was not a - the complaint was there that there was not a full review.  There was no review at all in this case.  There was no attempt to indicate at all anything about the accused’s evidence apart from the fact that it was made, that it was given.  Now, we say that is simply not enough in the context of this particular case.

KIRBY J:   But the accused’s evidence was a total, absolute and complete contradiction.

MR GREEN:   Yes.

KIRBY J:   A falsity, he said, and therefore it is not as if there were nuances, “Well, he conceded this and allowed that”.  It was total contradiction and the judge could not have overlooked that, Mr Green.  He could not have overlooked that fact.

MR GREEN:   Well, he did not, at any stage, say anything about that, your Honour.  He did not refer, for instance, to the applicant’s strident denials in a very dramatic way in the record of interview, for instance, the electronic recorded interview which he had seen.  Now, not a mention about that in the judgment at all where the applicant described these allegations as rubbish and as ridiculous.  Not a mention in his judgment about the strength of his witness, of his evidence whether he was an impressive witness or not.  Not a mention, apart from the matter of character, about the substantial factual support he got from his sister on the matter of whether or not, of course - which was an issue - whether there was any continuing contact after the last offence.

So those omissions are so glaring, in our submission, that they do lead us to be able to, we would suggest, confidently assert and submit that in this case we can make the step that the judge has failed, at the very least, not to weigh the evidence of the applicant - of the accused as he was.  And we say that he has omitted to do it in a proper way.

McHUGH J:   Speaking for myself, Mr Green, I must say I would require a lot of argument to convince me that a trial judge who has just heard the evidence of the accused, and then given a judgment, has failed to take that evidence into account.  It is a staggering proposition when you think of it in that way.  After all, the reasons do not necessarily indicate every part of the judge’s thinking.  They only have to give a general outline of the judge’s reasons for judgment.  He does not have to say, “Well, I have considered this aspect of it and I reject him on that, and I think he is a plain liar in this respect”.  It is quite obvious from reading the judgment that the judge rejected his evidence and accepted the evidence of the complainant.

KIRBY J:   He did say something, did he not, that “I do not want to unnecessarily hurt people”.

McHUGH J:   Yes.

KIRBY J:   Or “I do not want to” - and maybe it is this delicacy on his Honour’s part, experienced though he is, that he did not wish to indicate such hurtful statements as “I regarded the accused as a liar and I accept the complainant”.

MR GREEN:   All he was saying there was, in relation to the character evidence, he did not want to offend the applicant’s sister who probably - I do not know, but probably was sitting in the back of the court.  Now, that is a different matter from saying, of course, that he had given the applicant full consideration.  But what your Honour Justice McHugh said is that is a very basic matter for our application, of course, as we say that there may be cases of course when - and judgments - it does emerge that he has done this.  This is not a case like, for instance, O’Brien in which the Court of Criminal Appeal often relies:  Flemingand Kurtic where the judge in those cases quite clearly said, “I accept the complainant.  I reject the accused”.

KIRBY J:   So, it is that little phrase that is missing that is fatal.

MR GREEN:   More than that, your Honour.  We say that, if he does not say those precise words, at least it ought to emerge in the nature of the way he has dealt with the matter in the other things that he says, in the nature - in the way that he has dealt with the various issues, that he has, number one, considered the evidence of the accused; and number two, that he has given it adequate weight.  The very structure, we say, of the judge’s judgment in this case demonstrates error.  He simply enumerated the evidence without discussing it.  He talked about - it was as if he had decided that “I accept the complainant.  The only thing that is worrying me is the character”.  He does not say “the accused’s evidence”, he says “character”, and he quite correctly deals with the law in that case.  We have no argument there.  He says - and the inconsistencies in the boy’s evidence.  Now, having resolved that, he moves on then to find beyond reasonable doubt against the applicant without any consideration of anything else, and - - -

KIRBY J:   Well, if it were not a case of absolute total contradiction, I think you would have a greater point here and I am certainly with Chief Judge Hunt.  I agree that it would have been preferable.  But you have a case of total denial and therefore it is not a nuance.  It is not one to be balancing and widening particular facts.  It is just a complete denial.

McHUGH J:   And you certainly have a much stronger case, in my view, if this was a reserved judgment delivered some time later.  But this is a judgment delivered almost immediately after the accused has given evidence.

KIRBY J:   And apparently uncorrected.

MR GREEN:   Yes, but of course the argument on the other side of the coin to that is that that means late in the afternoon - 10 to five or whatever it is - it is easy for a judge to omit directing himself to issues such as the worth of an accused’s evidence or the particular direction that he ought to be giving himself, which he was asked to give but did not, that is, that this evidence was uncorroborated and he had to be very careful about it.  None of that appears in so many words, neither specifically or impliedly, in any words that he uttered, in our submission.  I cannot put that point any higher, your Honours.

The second part of that, similar to it of course, is that we say the authorities relating to section 33 are at best unhelpful but are erroneous in that - and your Honours will see from the cases we have cited that the New South Wales Court of Criminal Appeal says on several occasions that is not necessary for a judge to give anything else except the statement of the findings of fact and the directions, for instance, he does not have to elaborate on those.  We say that is wrong.  We say, your Honours, that section 33(3), requires a judge to give a warning to himself in a case such as he would give to a jury if a jury was there.

Section 33(2) clearly requires him to include “principles of law” and “findings of fact”.  Not just findings and fact, principles of law.  So a direction that he ought to give himself or a warning, we submit, is a principle of law and it ought to be expressed.

KIRBY J:   Well, there are becoming more and more judge only trials and it is almost certain that in some appropriate case somebody will come up here, perhaps you, and say, “Well this is another protected species example.  This is a case to take it on”.  But this does not seem to be the appropriate vehicle to do that.  I mean, that question is quite a significant question.  One day it may have to be dealt with as to what rules govern a judge instructing his own mind as distinct from the rules that govern a judge instructing a jury.  There must be a distinction.  The judge knows these things, or should know these things.  The Court of Criminal Appeal knows that the judge should know these things and therefore one of the points of a judge only trial is some economy in what has to be done and said.

MR GREEN:   Of course.  But our submission, of course, is that the ‑ ‑ ‑

KIRBY J:   I think I said that in the Court of Criminal Appeal in one case.

MR GREEN:   We discovered that case yesterday afternoon of Winner and it is useful in our submission.

KIRBY J:   Winner, that is right.

MR GREEN:   Your Honours, could I hand up copies of that case, please.  That is - - -

KIRBY J:   Is that not against you?  Was not the trust of the court there that you do not expect of a judge sitting alone the same degree of elaboration.  This was Justice Ireland at first instance.

MR GREEN:   Yes it was.

KIRBY J:   Yes, a murder trial.

MR GREEN:   But your Honour’s comment on pages 530 and 531 are helpful to the applicant, in our submission.  What your Honour said at the bottom of the paragraph of 530 is that you questioned, of course - and we have no issue with that - the assumption that the judge had to state all the applicable principle of law and you divided, of course, those principles into two camps, those ones that are self evident, of course, the very basic principles.  They are the ones - that is the only principle that has been stated in this particular case.   And the others, of course, where one would expect some helpful expression.  And what your Honour said at page 531 in the second paragraph is helpful in our submission:

The judge’s duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office.....Those reasons must be adequate and appropriate to sustain the judge’s orders.

Now, that, in our submission, applying it to this case, is helpful to the applicant and that is all that we are asking, and that is not the line that the New South Wales Court of Criminal Appeal is taking in the cases cited in our submission.

KIRBY J:   I thought I have seen that Winner has been referred to and applied, including by Chief Judge Hunt in cases.

MR GREEN:   Yes, but only sections of it, in our submission, and the line consistently taken is, “Look, the judge heard the evidence.  He is an experienced judge.  The fact that he has not expressed it is not to be taken that he has not so directed himself”.

KIRBY J:   Yes.  I merely repeat myself:  there are more and more of these trials, murder trials, as Winner was, there will be big cases when a lot is at issue and the question will just have to be addressed and that will be an appropriate vehicle.  This hardly seems to be one.

MR GREEN:   Apart from those matters, your Honours, why we say this is an appropriate vehicle, of course, is we move to the final point we say of general importance, is that our submission is that in this case there has been a miscarriage of justice in that there was one unchallenged evidence pointing to the innocence of the applicant which, we say, was ignored - that was my first point - by the trial judge and certainly not weighed appropriately;  and two, that the Court of Criminal Appeal applied a wrong test on the question as to whether the verdict was unsafe and unsatisfactory.

The Court of Criminal Appeal accepted that there were inconsistencies in the complainant’s evidence, however, Justice Sperling, for the court, decided that having considered these matters in the context of the evidence as a whole he was “not satisfied that the trial judge ought to have had a doubt”.  Now that expression “ought to have had a doubt”, in our submission - and I regret that I did not make this clear in my written argument - is the equivalent, we say, of the test that was disapproved of by this court in Jones v The Queen (1997) 72 ALJR 78 at page 86, that is - - -

KIRBY J:   But is that not the case where the Court said that the proper test is that laid down in M?

MR GREEN:   Yes.

KIRBY J:   And M is the case that is referred to by the Court of Criminal Appeal at page 19, line 4.

MR GREEN:   That is so.

KIRBY J:   And therefore we just cannot bring up every case where some formulation has been used and the M formula.  They had M before them.  They purport to apply it as a matter of general principle.  We cannot bring up every case.

MR GREEN:   But they did not have Jones, and Jones was decided ‑ ‑ ‑

KIRBY J:   Jones merely says M is right.

MR GREEN:   That is right.

KIRBY J:   Keep applying M.

MR GREEN:   More than that, with respect, your Honour.  It says that any test which says the question is whether the judge must, or the jury must have had it out, is wrong.  Now, that was, may I suggest, an elaboration of M and it was a decisive one.  Not only decisive in Jones but it has been decisive in other cases since.  Now, if the Court of Criminal Appeal did not have this, we say that the test applied by Justice Sperling in this case was the equivalent of that which was disapproved of by this Court, the majority of this Court in Jones.

McHUGH J:   Yes, well, speaking for myself, I am by no means convinced that the test formulated in M and Jones and other cases has really got anything to do with trial by judge alone.  It is dealing with a completely different area of discourse and one day we may have to look at it.  This is an appeal from a judge sitting alone, so you have all the usual rules.  A Court of Criminal Appeal can substitute its own findings of fact.  It is totally different to the jury system and it is a matter that may have to be determined one day.

MR GREEN:   Well, they are my submissions.

McHUGH J:   Thank you.  Yes, we need not hear from you, Mr Blackmore.

In this application, the challenge to the decision of the New South Wales Court of Criminal Appeal is not made out.  As Chief Judge Hunt observed in the Court of Criminal Appeal, it would have been preferable for the trial judge to have expressly referred in his reasons to his acceptance of the complainant’s evidence notwithstanding the sworn evidence which the applicant had given.  However, the absence of that expressed statement is not a sufficient ground to cast doubt upon the applicant’s conviction.  In at least two places in his reasons, the trial judge expressly adverted to the fact that the applicant had given sworn evidence and that fact would scarcely have been overlooked by him. 

There is no ground for thinking that the learned trial judge did not take the applicant’s evidence into account.  None of the other matters relied on would attract a grant of special leave.  Special leave is therefore refused.

AT 10.38 AM THE MATTER WAS CONCLUDED