FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
Matter No B28/2011
ADAM JOHN HARGRAVES APPELLANT
AND
THE QUEEN RESPONDENT
Matter No B24/2011
DANIEL ARAN STOTEN APPELLANT
AND
THE QUEEN RESPONDENT
Hargraves v The Queen Stoten v The Queen [2011] HCA 44 26 October 2011 B28/2011 & B24/2011
ORDER
In each matter, appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation
J T Gleeson SC with P Kulevski for the appellant in B28/2011 (instructed by Robinson Legal)
B W Walker SC with J R Hunter SC for the appellant in B24/2011 (instructed by Peter Shields Lawyers)
W J Abraham QC with A J MacSporran SC and J G Renwick for the respondent in both matters (instructed by Commonwealth Director of Public Prosecutions)
Interveners
S J Gageler SC, Solicitor-General of the Commonwealth with G A Hill and R J Orr intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales with J K Kirk intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
W Sofronoff QC, Solicitor-General of the State of Queensland with A D Scott and A D Anderson intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))
M K Moshinsky SC with C J Horan intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hargraves v The Queen Stoten v The Queen
Criminal law – Trial – Directions to jury – Appellants convicted of charges arising from tax avoidance scheme – Appellants' dishonesty only issue at trial – Appellants gave evidence – Prosecution called appellants' accountant as witness – Appellants' counsel cross-examined accountant suggesting he tailored evidence to avoid own prosecution – Trial judge told jury they could evaluate credibility by considering a witness's "interest in the subject matter of the evidence" including "self-protection" – Whether misdirection causing miscarriage of justice – Whether direction deflected jury from need to be persuaded beyond reasonable doubt of appellants' guilt – Whether direction invited jury to test appellants' evidence according to appellants' interest in outcome of trial – Principles applicable to directions about evaluation of evidence.
Criminal Code (Q), s 668E.
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. Phone Directories Company Pty Ltd ("PDC") produced local telephone directories. Until July 2001, the appellant Adam John Hargraves and his brother Glenn Luke Hargraves held all the shares in PDC. In July 2001, the appellant Daniel Aran Stoten and his wife, as trustees of a family trust, acquired a 10 per cent shareholding in PDC.
In January 2010, the two appellants and Mr Glenn Hargraves were presented in the Supreme Court of Queensland on an indictment charging each with one count of conspiracy…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hargraves v The Queen [2011] HCA 44
Case
[2011] HCA 44
Decision Date
CaseChat Overview and Summary
In *Hargraves v The Queen*, the High Court of Australia considered appeals against convictions arising from a tax avoidance scheme. The central issue at trial was the appellants' dishonesty, and both the appellants and their accountant gave evidence. The appellants' counsel suggested during cross-examination that the accountant had tailored his evidence to avoid his own prosecution. The trial judge directed the jury that they could evaluate witness credibility by considering their "interest in the subject matter of the evidence," including "self-protection." The appellants argued this direction constituted a misdirection, causing a miscarriage of justice by deflecting the jury from the need to be persuaded of their guilt beyond reasonable doubt and by inviting them to test the appellants' evidence based on their interest in the outcome.
The High Court was required to determine whether the trial judge's direction regarding a witness's "interest in the subject matter of the evidence," particularly "self-protection," constituted a misdirection. Specifically, the Court had to consider if this direction improperly shifted the focus from the prosecution's burden of proving guilt beyond reasonable doubt to an assessment of the appellants' self-interest, thereby creating a miscarriage of justice. The Court also had to consider the principles applicable to directions concerning the evaluation of evidence, particularly when a party's dishonesty is the sole issue.
The Court's reasoning drew heavily on the principles established in *Robinson*. It held that a direction which suggests a witness's evidence should be scrutinised more closely solely because of their interest in the outcome, without proper qualification, can amount to a misdirection. The Court emphasised that while a jury is entitled to consider a witness's interest in the outcome, including self-protection, this must not lead to treating a witness as inherently less credible or as a "suspect witness" simply due to their position. The direction must not deflect the jury from the fundamental requirement that the prosecution must prove guilt beyond reasonable doubt. The Court found that the direction given in *Hargraves*, when viewed in context, did not create a miscarriage of justice because it allowed for the consideration of interest in the outcome by all witnesses, and did not improperly single out the appellants for closer scrutiny based solely on their interest.
In each matter, the appeal was dismissed.
Orders
Orders of the court
In each matter, appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
HEYDON J
(dissent)
It is convenient to begin examination of whether the third of the grounds identified in the criminal appeal statute ("on any ground whatsoever there was a miscarriage of justice") was established by considering what was decided in Robinson.The decision in Robinson: a rule? The appellant in Robinson was tried for rape. The complainant gave evidence that she "consented" to intercourse after a struggle and as a result of threats. The appellant gave evidence that the complainant's consent had been freely given. The trial judge directed[16] the jury about the assessment of the credibility of witnesses. Twice he suggested to the jury that the appellant had a greater interest in the outcome of the case than anyone else and that, as a result, the jury might say that they should look at his evidence "closely". Early in his charge the trial judge suggested that the jury might say that they should look at the appellant's evidence "more closely than perhaps we would look at [the evidence of] others". Later, in the charge, the trial judge said:"Another test [by which to assess the credibility of witnesses] was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness's evidence closely. You might think – it is a matter solely for you – that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely."Trial counsel for the appellant in Robinson did not ask for either of these directions to be withdrawn but did ask the trial judge to direct the jury "that the complainant also had an interest in the outcome of the case". In the course of giving a further direction along the lines that trial counsel had sought, the trial judge reminded the jury that he had suggested that "you might well conclude that the accused has the greatest interest of all the witnesses" and that the jury "might think that the greater the interest the more carefully you should scrutinise a witness's evidence". The trial judge told the jury that they might conclude that the complainant also had an interest in the outcome of the case and that "the interest in the outcome of the case test" was to be applied "to all the witnesses if you believe that test is applicable".[16]The relevant parts of the directions are set out at (1991) 180 CLR 531 at 533‑534. On appeal to this Court, the Court concluded[17] that the directions the trial judge had given "had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused". That is, the Court concluded[18], that"the directions virtually had the effect that the appellant was to be treated as a 'suspect witness' in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as 'suspect witnesses', that is, as witnesses whose evidence is to be accepted only after most careful scrutiny[19]".[17](1991) 180 CLR 531 at 535.[18](1991) 180 CLR 531 at 535.[19]See R v Hester [1973] AC 296 at 324‑325; Longman v The Queen (1989) 168 CLR 79 at 85, 104‑105; [1989] HCA 60.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ,