Hargraves v The Queen; Stoten v The Queen; Handlen v The Queen; Paddison v The Queen

[2011] HCATrans 253

[2011] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B28 of 2011

B e t w e e n -

ADAM JOHN HARGRAVES

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B24 of 2011

B e t w e e n -

DANIEL ARAN STOTEN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B26 of 2011

B e t w e e n -

DALE CHRISTOPHER HANDLEN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B27 of 2011

B e t w e e n -

DENNIS PAUL PADDISON

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 SEPTEMBER 2011, AT 10.15 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR P. KULEVSKI for the appellant Hargraves.  (instructed by Robinson Legal)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR J.R. HUNTER, SC, for the appellant Stoten.  (instructed by Peter Shields Lawyers)

MR P.J. DAVIS, SC:   May it please the Court, I appear with MR. G.J.D. DEL VILLAR for the appellant Handlen.  (instructed by Legal Aid (Qld))

MR M.J. BYRNE, QC:   May the Court please, I appear with my learned colleague, MS C.L. MORGAN, for the appellant Paddison.  (instructed by Legal Aid (Qld))

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friends, MR A.J. MacSPORRAN, SC and MR J.G. RENWICK, for the respondent in Hargraves and Stoten, and I appear with my learned friend, MR J.G. RENWICK, for the respondent in Handlen and Paddison.  (instructed by the Director of Public Prosecutions (Cth))

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MR G.A. HILL and MS R.J. ORR, for the Attorney‑General of the Commonwealth intervening in each matter in the interests of the respondent.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR J.K. KIRK, for the Attorney‑General of New South Wales who intervenes in each of the matters.  (instructed by Crown Solicitor (NSW))

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends, MR A. SCOTT and MR A.D. ANDERSON, for the Attorney‑General of the State of Queensland intervening in support of the respondent.  (instructed by Crown Law)

MR M.K. MOSHINSKY, SC:   If the Court pleases, I appear with my learned friend, MR C.J. HORAN, for the Attorney‑General for the State of Victoria.  (instructed by Victorian Government Solicitor)

FRENCH CJ:   Yes, Mr Gleeson.

MR GLEESON:   Your Honours, in the Hargraves matter we commence with the identification of the central issue in the trial which was simply whether the appellant, Adam John Hargraves, held a dishonest state of mind in relation to the scheme and the claiming of deductions in respect to it and that required findings as to what he knew, understood and believed and whether those matters were honest by ordinary community standards.

Your Honours, the offences with which he was charged, and this is true for Mr Stoten, fell into two periods.  Count 1 was under the Crimes Act 1914 sections 29D and 86. We have provided copies of those provisions. That was conspiracy to defraud. In respect to that offence upon which each appellant was acquitted, the discussion by this Court in Peters v The Queen 192 CLR 493 on the role of dishonesty within the offence of conspiracy to defraud is relevant.

The second count for the later period was under section 135.4 of the Criminal Code and that section expressly made dishonesty an element of the offence.  The offence was conspiracy with another with the intention of dishonestly causing a loss to a third person being a Commonwealth entity.  The manner in which those provisions were taken up in the indictment is found in volume 2 of the materials at pages 3 to 6 and in respect to Adam Hargraves, under count 1 the relevant material is on page 4 and in respect of count 2, which alleges a conspiracy with intention to dishonestly cause a loss to the Commonwealth, the relevant material is at the bottom of page 5.

Your Honours, that charge refers to overt acts.  The overt acts are a schedule of some 110 pages which we have not burdened the Court with, but it is available if necessary.  The other document particularising the charge is found in volume 6 at page 1970 being the particulars of the alleged unlawful agreement and one sees in there the elements of being designed to conceal certain matters, knowingly falsely claiming deductions and, at the foot of the page, the dishonest means employed are those detailed in the 110‑page document I have referred to.

Your Honours, having identified the issue, our second proposition which is not controversial but sets the structural framework for the appeal is, of course, that the plea of not guilty meant the prosecution was required to prove its case beyond reasonable doubt and attracted the presumption of innocence. This was a trial on indictment of a federal offence and section 80 guaranteed by its command a trial by jury. It is section 68 of the Judiciary Act which picks up relevant State law but expressly subject to section 80. It follows from that, we contend, that the appellant was entitled to have the jury of lay persons decide the question of guilt or not on the federal charges and, critically, that was a jury properly instructed on the law and properly advised on the facts.

HAYNE J:   What does that mean, “properly advised on the facts”?

MR GLEESON:   It means that we accept that within the concept of trial by jury, there is a role for the judge to make observations which will assist the jury in the task of finding the facts.  What is not open to the judge is what occurred in this case which is to give a direction to the jury that the evidence of the accused is to be assessed in terms of reliability by reason of an interest of self‑protection, meaning an interest in the outcome of the trial.  That is one example where, by giving that direction, the judge was going beyond what was proper advice, to use that element of our proposition, and it indeed was an error of law, we submit, to direct the jury they were to carry out their function in that manner.

GUMMOW J: What is the consequence of non‑observance of section 80? Does it found a separate matter arising under the Constitution? How does it find its way into any appellate process?

MR GLEESON: Your Honours, there are a number of answers we would offer to that question. If there has been any contravention of section 80, whether of the present type or other types that the Court has held, the immediate consequence is that the conviction in this case which has been announced by a judge does not have the necessary legal underpinning required by the Constitution, namely, a verdict reached through an exercise of power constituting trial by jury. The result of that is that the conviction does not meet the exercise of judicial power required through section 80 and then that can lead in particular directions.

In terms of the appellate power being exercised, if one is approaching it through section 68 of the Judiciary Act which picks up State law subject to section 80, the immediate consequence under the Queensland provision – we have provided copies – is that the right of appeal itself was conferred by section 668D of the Criminal Code and the right of appeal arose because Mr Hargraves was a person who was convicted and under section (1)(a) he had a right to appeal on a ground which involved a question of law.  Then in terms of the powers of the Court under section 668E, the Court was to:

allow the appeal if it is of opinion that [relevantly] the verdict of the jury should be set aside . . . on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice ‑ 

Then we come to the proviso under subsection (1A). So one answer to the question is that because the entirety of section 668 is picked up subject to the command of section 80, if there has not been a relevant trial by jury within the description, the Court is to allow the appeal and to preface our further argument, the power under the proviso, subsection (1A) is not available. That is one consequence, your Honours, in terms of the matter.

Another consequence would be that if, for example, the trial in federal jurisdiction was presided over by a federal judicial officer, a remedy would be available under section 75(v) of the Constitution and in this case where it is presided over by a State officer, it would at least be available under section 75(iii) of the Constitution being a matter involving the Commonwealth as the prosecuting party. So that there could be ‑ ‑ ‑

GUMMOW J:   That would be original jurisdiction.

MR GLEESON: Yes. So that remedy would be another way in which it could be done and to take a simpler section 80 case where, for instance, the judge was purporting to preside over a trial with only eight or six or some other number that was beneath the necessary limit, there could be writs of prohibition to prevent that occurring and if it proceeded through to a conviction, there could be certiorari together with mandamus to conduct a proper trial. Another possible consequence, because section 80 is a limitation on judicial power itself directly, is that if this Court were exercising its appellate power under section 73, it would exercise it conformably with the command of section 80 and in that situation, the contravention of the command would dictate the outcome of the appeal.

Your Honours, we then just note that Mr Hargraves had his choice either to remain silent or to give evidence.  He gave evidence and having done so, it was an essential part of the judge’s role to give the jury proper directions on how they were to assess that evidence.  Your Honours, there is, I believe, only one detailed matter of fact which is raised in the appeal and that is through the notice of contention and that is an argument which I will deal with immediately, if I might, which says that the Court of Appeal wrongly found error in what the trial judge did.

If it is convenient to move directly to that, we defend what the Court of Appeal did on this question.  Your Honours will find the directions given by the trial judge in volume 6 commencing at page 2112 and when giving these directions, the trial judge was speaking to a series of slides which he left with the jury.  Your Honours will see the relevant slides at page 2098; if one cross‑refers to that as I go through the direction.  What his Honour was doing was talking to these topics of creditability at 2098 to 2099 and the one that caused the error is at 2099 under the heading “Interest” where he suggested there was interest of friendship and self protection, relevantly, which should be taken into account in assessing credibility. 

In terms of the actual direction, it commences at page 2112 at line 50 and the judge correctly recognised that in this trial credibility was going to be very important.  At 2113, line 30 he said credibility involved truthfulness and reliability and there were techniques to assess it.  Over the page at line 20 he said demeanour and presentation was important and he discussed some aspects of that.  The critical matter is at the foot of page 2115 where his Honour said:

Next, interest.  Does the witness have an interest in the subject matter of the evidence?  For example, friendship, self‑protection, protection of the witness’s own ego.  There are any number of personal interests which people have and which they sometimes try to protect in giving evidence.

The Court of Appeal correctly found that when that direction is given generally, it covers, critically, the accused who gave lengthy evidence and that the most obvious interest in self‑protection that would be conveyed by that direction is an interest in the outcome of the trial and that accordingly, it tended to incline the jury to assess the reliability of the evidence of the accused by reference to their interest in the outcome.

To complete the context of the directions, on page 2116 there were some further techniques and then on 2117 the topic of lies was discussed and then at line 30 on that page the judge returned to refer to the onus of proof.  The prosecution says here that reference to the onus of proof was enough to cure any problems that had gone before.  We submit it was not.  What then occurred ‑ ‑ ‑

HAYNE J:   I am sorry, what passage are you referring to there?

MR GLEESON:   Page 2117, between lines 30 to 50.  Our short submission is that, as in Robinson itself, an erroneous direction on this absolutely critical matter is not saved by an otherwise correct direction in the vicinity about the general onus of proof.

HEYDON J:   Mr Gleeson, can I ask you two questions.  One, why is Robinson an authority and, two, if it is, why does it apply here?  No cases were cited to the Court in Robinson.  The Crown, in effect, conceded the point.  Thirdly, it was, if you like, a much more extreme direction than was given here.  It was specifically directed to the accused in fairly strong language.  Here we have a direction that is directed to all witnesses in a 32‑day trial, or however many days it was.  You are complaining about one word.  Is Robinson an authority and if it is, does it apply here?

MR GLEESON:   As to your Honour’s first question, Robinson v The Queen 180 CLR 531, our answer is yes, it is an authority.

HEYDON J:   How can it be an authority if the point was not argued and if there was no examination of prior case law, save for a reference to cases about complainants in sexual cases and young children being treated as suspect witnesses?  If it is not convenient to deal with this now, we can postpone it until it is.

MR GLEESON:   Your Honour, I would wish to check that the cases referred to at the foot of page 532 related to other issues and not to this issue.  There were a number of cases cited there.  Leaving aside whether authorities were cited, the proposition that the point was not argued is one I would like to check, your Honour.  It is not apparent to me from the way the case is reported to say that it was unargued, that the Court simply decided the point without there being argument and as to the legal merit of what the Court found, I would like to defend that, the legal merit being that what was said at page 535 by a Court of five Justices correctly apprehends these matters, that, firstly, a direction which invites the jury to assess the evidence of the accused by reference to an interest in the outcome of the trial has a tendency to lead a jury to conclude that person has not only an interest but the greatest interest of witnesses in the case, his liberty is at stake and that that may be a reason why that witness will not be telling the truth and why I need to scrutinise the evidence of that witness more closely for the reason that he is the accused.  That is the first premise in the argument between about point 2 and point 5 on page 535.

The second premise is that if that is the effect of the direction, that that is calculated to undermine the fairness of a trial, particularly in a case like the present where the central issue in the trial concerns whether the jury accepts the evidence of the accused against the competing evidence.  In Robinson the competing evidence was from a complainant, in the present case the competing evidence was said to arise from two sources, one, Mr Feddema, a witness, and, secondly, inferences which were said to arise from documents.  So the third premise, which is at the foot of page 535, is that that tends to undermine the presumption of innocence which has arisen from the plea of not guilty.  We would submit that those three steps are soundly based.

BELL J:   Starting with the first one, you directed attention to the suggestion that in that case the direction focused on the accused having the greatest interest of all in the outcome of the proceedings and by reason of that, the need to scrutinise the evidence of the accused with great care.  Those matters are raised at 535 because they are exactly what the trial judge directed the jury in Robinson.  What is less clear is that Robinson is laying down a general proposition that would embrace the direction given here, particularly when one turns to the passage at 536 in the first full paragraph.

MR GLEESON:   Can I deal with a that passage, your Honour, at 536.  The Court say that this does not excuse the accused from the ordinary tests applicable to witnesses generally and then in an important sentence the Court says:

in examining the evidence of a witness in a criminal trial – including the evidence of the accused – the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings.

We would read that sentence as not speaking of an interest in the outcome of the trial.  Is there some particular interest or purpose which the accused might have, the same as any witness which needs to be taken into account?  An example might be the trial judge’s reference to friendship if friendship was an issue in the case.  But in that sentence the Court, we would submit, is not commending a proposition that a jury should be invited to take interest in the outcome into account, save in what the Court goes on to say is the most exceptional case.  The last two sentences of that first paragraph, we would submit, are correct and encapsulate the principle:

to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person.  Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.

What we therefore submit is that the ordinary rule has been correctly laid down.  The Court should not be speaking to the jury of an interest of a witness in the outcome.  There must be an exceptional case because of this inevitable disadvantage that is caused.  Now, I have not yet come to your Honour’s second question which is whether the present case is caught by the Robinson principle.  Clearly enough in the present case the vice is not as extreme as it was in Robinson.  We have conceded that in writing.  However, could I do two things; firstly, just identify what Stafford said, bearing in mind Stafford was a decision on special leave and not an authority of the Court in the exercise of jurisdiction. 

If your Honours have Stafford (1993) 67 ALJR 510, the understanding of three Judges of the Court, Justice Dawson had not been a member of the Court in Robinson, was that – and there are three propositions stated in that opening paragraph.  The first proposition is:

a trial judge should not direct the jury that the “interest” of an accused in the outcome of his or her trial is a “factor” to be taken into account in assessing his or her evidence.

We read that as a general proposition.  Interest in the outcome should not be the subject of direction.  The second proposition which is the a fortiori is:

Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome.

That is the additional vice that was in Robinson itself, that not only was it a direction about interest in outcome, but the relativity of the interest was there.  We take from Stafford, bearing in mind its status as a special leave decision, that that additional element is an aggravating factor in a direction but not an essential factor for there to be an error.  Then the third proposition is the more general one:

Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused –

that is the first limb.  The second limb –

or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness.

We submit that that first paragraph accurately states the law.  Stafford then goes on to deal with what do you do in exceptional cases and the Court refers to there being exceptional circumstances which:

require some reference to the accused’s interest in the outcome as a matter of fairness to the accused –

and in such a case –

it should suffice to inform the jury –

and here is the suggested direction for the exceptional case, and we observe it is a direction not given by the judge here –

that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial.

The exceptional case calls for that direction, it is suggested, and that is not the direction that was given here.  The Court then went on to explain why in the particular circumstances of that case special leave would be refused.  It is a case very different from the present.  It is a case where your Honours see at letter D that the accused had simply denied what was alleged and had not given extensive explanation of his conduct and state of mind as occurred here.  Can I then come to the present case and to the second question the Court asked which is ‑ ‑ ‑

GUMMOW J:   Before you leave Robinson which is referred to by Justice McHugh in Palmer 193 CLR 1 at 28, paragraph 70, and also by Justice Kirby at 43, and there is also reference to Stafford. 

MR GLEESON:   Thank you, your Honour. Could I come back to that case?

GUMMOW J:   Yes.

MR GLEESON:   We had in our reply submissions at paragraphs 4 and 5 instanced some of the cases at the intermediate appellate court level in Australia which have, we would submit, understood Robinson in the way we have understood it and given it that interpretation.  In New South Wales that is reflected in Asquith v The Queen (1994) 72 A Crim R 250 where a bench of Chief Justice Hunt, Justices Smart and Badgery‑Parker, referring back to what Chief Justice Gleeson had said in New South Wales in a case of Reeves explained the underlying logic of the Robinson point as involving a basic fact of human nature that the direction concerning the interest in the outcome is likely to be understood as an invitation to discount the evidence of the accused.  In Western Australia the strength of the proposition was reaffirmed more recently in De Rosa v Western Australia (2006) 162 A Crim R 344 at 355.

HEYDON J:   But human nature may have its play in the jury decision even though there has been no direction one way or the other.  In other words, the jury themselves would say that person is in big trouble.  That person may say anything to get out of it.  We will have to scrutinise what is said very carefully.  Is it not rather irrational to have a rule which says you cannot direct the jury in any way save for the exceptional circumstance which it seems to be rather hard to think up examples of.  You cannot direct the jury in any way about the question of the accused’s interest, not even to control the wild, irrational elements in the reasoning of the jury that might take place if there is no controlling direction.  There is no principle that they are to be directed not to reason in that way, they are allowed to reason in that way.  That is so, is it not?

MR GLEESON:   Robinson stands for an approach where in the ordinary case there is not to be a direction on that subject matter, your Honour is correct in that question.

HEYDON J:   I agree, but is it rational?

MR GLEESON:   The rationality of Robinson includes – the underlying rationality of Robinson is that to give the affirmative direction that the interest of that accused in the outcome is something you are entitled to take into account will have the tendency referred to in this series of cases, and we submit that is a sound proposition being outlined there, namely that that is the basic fact of human nature being referred to in Asquith v The Queen, that that will be understood by the jury as an invitation to discount the evidence of the accused. 

Your Honour in the question poses perhaps the opposite example, whether it is permissible for the judge to give a direction on that subject matter which might control what might otherwise be irrational reasoning by the jury in a case where that is felt appropriate.  It is true, on our reading of Robinson, that it seems to exclude that occurring except in the exceptional case and if, in that sense, the exceptional case of Robinson has used the word “exceptional” when perhaps “special” or “appropriate” might have been the correct word, then that is an accommodation of it that could be considered.  However, your Honours will note from what I went to in Stafford that even in the so‑called exceptional or special case, the form of the direction suggested, which is one we would commend as the Stafford direction, is that the accused is presumed innocent and it would be wrong and unfair to discount his evidence simply for the reason that he has a particular interest in the outcome of the trial. 

Now, if that is a direction which is appropriate in more than the exceptional case, we can accommodate that at least within the context of these appeals because that is the very direction which this trial judge did not give.  He was giving a direction indicating that with all witnesses the interest of self‑protection, which for the accused can only mean interest in the outcome, was something they could take into account and the obvious inference was taken into account against the accused as a reason to discount his evidence.

HEYDON J:   Was he asked to give it?

MR GLEESON:   It was immediately objected to.  I do not believe, from my review of the transcript, the judge was asked to give it.  My answer to your Honour’s question is that whether the word “exceptional” is too strong a word is a question for consideration, but even if one were to countenance some proper direction on the subject of the accused’s interests, it is not the type of direction given in Robinson itself and not the direction given here.

HAYNE J:   You speak of it as a direction.  Is that accurate?  It was a judicial comment in Robinson, was it not?  Although there is frequent reference to be found in the reasons to the word “direction”, in truth, it is a comment by the judge on the evidence of the witness.

MR GLEESON:   We would agree with that, your Honour, in the sense that it appears to fall within that limb that your Honour asked me about earlier of the judge advising the jury on the facts, including the way in which the jury was to approach the evidence of witnesses.

HAYNE J:   You should not assume that I accept that a judge advises the jury about the facts.  A judge’s task is to identify the real issues in the case and tell the jury so much of the law as they need to know to decide those real issues.  The judge may, but need not, comment on facts.

MR GLEESON:   What the judge chose to do here, perhaps within that area of discretion, both through giving the jury the slides I have been to and through these directions, was to say, this is a trial where credibility is central and here are what he described as techniques which the jury was entitled to apply to the conflicting evidence to discharge their function of resolving guilt according to federal law.

HAYNE J:   The point of identifying what is said in Robinson as a comment rather than a direction is that it may invite attention to whether, read as a whole, including this commentary, the judge has accurately told the jury about the burden of proof, that is, whether the comment delivered, as in other contexts it is often said to be with the authority of the judge’s office, whether the comment is diverting the jury from a proper understanding of the burden of proof and the standard of proof and if that were an analysis that is available of Robinson, the strength of the comment, as one might describe it, may be significant.  But it then leads to a further question in this case about whether, read as a whole, this set of directions has diverted the jury or may have diverted the jury from a proper understanding of the onus and standard of proof.

MR GLEESON:   Your Honours, can I approach it through that prism and indicate, looked at as a whole, there is one further part of the direction which is now important to consider.  I have dealt so far with the very specific comment itself.  There is a matter of immediate context which I wish to come to, and the easiest way into this is to see what the judge said when the protest was immediately taken.  The protest was taken at page 2120.  There is no doubt there was an immediate reaction.  The judge indicated why he thought what he had done was appropriate at 2127, at line 45 over to 2129, line 30.  In effect, that is the ruling for not discharging the jury.  I want to deal specifically with the format as the judge referred to in defence of what he described as a direction.  His first proposition was that the direction was:

not specific to the accused, it was completely general.

In one sense of course it was general.  Nevertheless, it was necessarily covering the accused, being two of the critical witnesses who had given evidence for quite a number of days.  So the fact that you make it generally, we submit, would not remove the vice.  Secondly, he said:

the direction does not refer to taking an interest in the outcome of the trial –

His Honour said it referred:

an interest in the subject matter of the evidence.

That distinction, we submit, is illusory.  In the case of the accused, to refer to an interest of self‑protection will ordinarily, almost universally, convey, “What do I have to protect my liberty?”  For his Honour to say, “I was not asking the jury or inviting them to think about outcome,” we submit, just misunderstands the statement he made. 

The third matter he points to is that it was “followed by a reference to the onus of proof” and I have drawn attention to where that statement was made shortly after the particular comment and I have indicated in Robinson that did not save the matter.  Then the fourth matter, which is page 2129, which his Honour said was of particular relevance, concerned a Crown witness, Mr Feddema.  He said the truthfulness of his evidence was attacked, and:

I shall be giving specific directions about Feddema’s evidence, however it seems to me that to fail to inform the jury that in assessing his evidence his interest should be taken into account I would be running a grave risk of injustice to the accused.

With respect, this is not the matter that Justice Heydon raised with me of attempting to control irrational reasoning from a jury who might take interest in the outcome into account adverse to the accused.  What the judge seems to be saying is, “Because I have to make a specific direction about Feddema,” which he did, “it will somehow be fair to the accused if I direct or comment to the jury that you should take into account their interest in the matter.” 

Now, that is not fairness, that is the exact opposite of fairness.  So in terms of Justice Hayne’s question to me about degree perhaps, and context, we would submit that what the judge has indicated at line 10 on this page shows a complete misunderstanding of the vice that was being created by his very comments.  He may have believed he was doing this to avoid a grave risk of injustice to the accused, but the means of doing that was to convey to the jury, “Because he has an interest in the outcome you should take that into account”, and that could only be to undermine an assessment of his reliability of his evidence.  It could not be in any way in favour to the accused.

FRENCH CJ:   How did his Honour characterise the comment?  I note that at 2103 to 2104 he explains to the jury what he is going to be telling them and refers to saying something about the process of “assessing evidence and assessing credibility”.  That is about line 50 on 2103.  Then he talks about “directions on the law” and after that is comments on the facts and he tells them what he says on the law is binding, what he says on the facts is not.  The general comments seem to fall between those two schools.  Did he say anything else relevant to this characterisation of those?

MR GLEESON:   There is nothing further I can point to at the moment, your Honour.  So, with that reference to why the judge thought Feddema was critical to this exercise could I then show the Court how he proceeded to give directions in respect to Mr Feddema.  At page 2130 he returned to these techniques about credibility and said he would say something about some of the witnesses and what the submissions of the parties are in relation to the witnesses.  Mr Feddema he commences with at page 2132, line 40 and says:

It’s common ground that he was not a completely reliable witness -

and, perhaps, not “completely honest”.  Then he said what the Crown and the defence said about Mr Feddema and then he identifies three particular interests Mr Feddema had to protect:

he was keen to protect his professional standing . . . 

Second, he was exposed to a perjury charge if he gave evidence inconsistent with his testimony to the ACC.  He was locked into that story –

and because of an interview:

he must have understood that he would not be prosecuted if he gave evidence –

consistent with his earlier statement.  Now, they appear to be three particular interests of self‑protection that the judge considered arose with Mr Feddema which he clearly directed the jury that they could take into account in deciding how to deal with his evidence.  Then there is some more discussion about Mr Feddema and at the foot of 2135 the judge returns to how the techniques could be applied and one of them is:

Was he motivated by self‑protection -

as well as some others.  He then came to my client, Mr Hargraves, at page 2136, line 20.  The essential dispute between the parties on the facts was the Crown said the jury:

should not accept his evidence about his belief and his honesty –

for two reasons –

it is inconsistent with the documents, and second, that his manner of giving evidence was evasive and misleading.

So manner, demeanour, credibility was critical.  The defence position was:

that his evidence was not inconsistent with the documents –

and evidence as to his “general reputation for honesty” could be taken into account.  His Honour then deals with how the jury might deal with evidence as to honesty, “general reputation for honesty”.  That goes through the balance of that page and over to page 2137 and he then moves to the next witness at 2138, which is the other appellant.

Now, our submission is when one looks at the whole of this in context the judge clearly understood that this was not a throwaway line, this was a direction which he was intending the jury to take into account in some measure as a counterbalance to the directions or comments about the self‑protection interest of Mr Feddema, and clearly take into account in a context where there were two central disputes, one of which was did the witness display an evasive and misleading manner. 

Now, we would submit why was that not calculated?  The general interest direction which spoke to interest in the outcome, why was that not calculated to convey to the jury you might more readily conclude the accused was evasive and misleading because he was a person whose interest in the outcome dictated the type and quality of evidence he was offering to you? 

Now, if that is a fair reading of the whole of the material, your Honours, we would submit that that displays the vices identified in Robinson undermining the presumption of innocence and, to frame it as Justice Hayne put to me, distracting or deterring the jury from their central task of correctly applying the burden and standard of proof to the evidence, including the critical evidence given by the accused.

HEYDON J:   Is the general demeanour direction given on 2114 which was the first technique of assessing credibility?  Is that vulnerable to these criticisms you have just made?

MR GLEESON:   Yes, because as I showed from the slides which were left with the jury at pages 2098 to 2099, these were the seven or eight techniques which were to be applied, so it was suggested to the jury.  Demeanour and presentation is the very first of the techniques.  Then one leads down to the others where interest has this critical role.  Now, we would submit that a jury, having heard that direction and taking away these two pages of slides where the judge was clearly saying to them, not only does Mr Feddema have interest to protect, which you should take into account in assessing the reliability of his evidence, but all witnesses have interest to protect with the accused.  That can only mean that this interest in the outcome is something which might explain what the prosecution claimed to be an evasive and misleading manner of giving evidence. 

HEYDON J:   Well, you do not criticise these directions though, do you, when they are directed to witnesses who are not the accused or at least witnesses who are not your client perhaps.  These are reasonable directions, are they not, for witnesses not directly affected in the proceedings?

MR GLEESON:   Yes.  If there was no issue of the accused, the generality of the direction would not of itself be offensive.  It might in many cases be surplusage and unhelpful, but merely to say self‑protection could be an issue as one of a number of general techniques with a range of general witnesses I suppose does no more than say to the jury, if I am not giving you any further guidance, you go away and think about what might someone have to protect and how might that affect the quality or the nature of the evidence they are giving.  But the vice comes when most clearly it covers, amongst others but centrally, persons who have given evidence over quite a few days when the central issue in a case is an allegation that their evidence is evasive and misleading.

HEYDON J:   Do not your submissions really require the judge to distinguish fairly sharply between non‑party witnesses and parties and, really, to say as little as possible about parties except where there is a specific submission that the judge thinks it is necessary to deal with?

MR GLEESON:   As a general guide, that would be the tenor of our submissions but each case being specific, what I have sought to emphasise in this case there clearly were reasons to give directions specific to Mr Feddema about what he might be protecting and the prosecution had no difficulty with those directions being given.  But to say in terms of an almost tit for tat, if he has been labelled as someone who has got an interest to protect, I want you members of the jury to remember everyone might have something to protect in the evidence they are giving where that necessarily encompasses the accused, we get into the area of difficulty.

BELL J:   It is conventional in directing a jury in a case in which the accused has given evidence to draw to the jury’s attention that the accused was not required to give evidence but having elected to do so, his or her evidence is to be assessed in the same way that the evidence of all the witnesses is to be assessed.  In any case in which there is a non‑party witness whose evidence is to be assessed by reference to considerations of the interest the witness might have had in giving evidence other than truthfully, a broad direction of the character that I first referred to would create the same problem, would it not?

MR GLEESON:   With respect, no, your Honour, because if the judge has said, as he has here, with Mr Feddema – there was a general attack upon his credibility on both sides.  Both sides said you could not fully accept the man and he may be dishonest and here are particular matters he had to protect, so you take that into account.  If that does not lead you, we would submit, to say because he had that interest to protect, the jury ought to be thinking about the interests which everyone else might have to protect in giving evidence and in the case of the accused, that is an interest in the outcome.  If the judge felt – I come back to Justice Heydon’s question to me this morning – if he felt there was some danger in the light of the clear identification of self‑protection as a Feddema matter, that a jury might start to wonder, well, does that apply to the accused.  Is he giving evidence in an evasive manner because of his interest in the outcome and, therefore, I must give a direction in fairness to the accused, it would not be this direction.  This direction does not solve that problem.  This direction compounds that problem.

Your Honours, the actual finding of the Court of Appeal is in volume 6 at page 2313.  The reasoning is found between paragraphs [126] and [129].  We would commend paragraph [126] is correct.  Paragraph [127] is correct if the word “arguable” is read as “it is also the case that”.  Paragraph [128] is Justice Muir taking into account the prosecution argument to the contrary, and the final decision is [129] which without the “hesitation” in the first line we would commend is correct, particularly the last sentence of paragraph [129], we would submit, is a fair and straightforward reading of the character of the statement made by the judge.

As to paragraph [130], we have submitted that contains an error because if one does have a statement which is calculated to undermine the jury carrying out their function in the manner I have indicated, that is a miscarriage of justice within section 668E(1) of the Criminal Code without more.  There is one point of detail.  If your Honours would go back to page 2305, paragraph [102].  The prosecution argues in their submissions that paragraph [102] is a finding by Justice Muir and they rely upon the last sentence as a finding.  We submit that that paragraph, as with the two before it, is a recitation of a submission.  It cannot be a finding of the Court because it is inconsistent with the ultimate finding at paragraph [129].

BELL J:   I am sorry, which paragraph are ‑ ‑ ‑

MR GLEESON:   Paragraph [102], last sentence, and that it is just directly contrary to what the Court has ultimately found and it must be a recitation of a submission.  The submissions commence at paragraph [100].

GUMMOW J:   It is governed by paragraph [100], second sentence, is it not?

MR GLEESON:   Yes.  Your Honours, the matters I have sought to put take me down to the end of proposition 5 and it is critical to our case that the direction or comment by the judge be seen as having the character we identify, namely, undermining the fairness of the trial, the presumption of innocence and the ability of the jury to carry out their constitutional function.

FRENCH CJ:   When you say that it undermines the presumption of innocence, do you mean that it logically operates as a qualification on the presumption of innocence or on the burden of proof?

MR GLEESON:   It is calculated to have that effect before the jury if they are considering that when I assessed the reliability of this witness I can treat him with a great deal of caution because he is probably saying it to avoid going to gaol and in that sense, as explained in Robinson, it diverts the jury from the correct burden and standard of proof.  Yes, that is what we put, your Honour.  Now, if it has that effect then within section 668(1) it would be at least a miscarriage of justice.  Whether it is also a wrong decision on the question of law may depend upon what Justice Hayne has put to me.  It is sufficient that it would be a miscarriage of justice.

Your Honours, in our notice of appeal, in coming to proposition 6 through to 8, we have one ground which is that the proviso under section 668E(1A) was not available, even without section 80 considerations. Could I deal with that just briefly. What we have sought to do in proposition 6 is, bearing in mind this Court has said in a number of proviso cases there is no substitute for the statutory language and drawing up categories of cases may not be helpful, we have nevertheless submitted that the types of considerations the Court has dealt with, particularly over the last 10 years, in determining when the proviso is not available tend to involve the seven matters we have identified. We offer them as of some assistance in the characterisation exercise.

They are obviously all related, but we would submit that this is a case where, fairly clearly, the proviso would never apply given the type of error we have – one which I have identified – the substantial departure from the requirements of a fair trial; the fact that the error goes to the central issue cannot be dismissed as peripheral – it goes to the very central issue; the fact that, as the Court has remarked in some cases, the effect of the error may be to render the jury verdict of no weight – that, we submit, is this case; it is a case where there is no other route to guilt which does not involve the credibility of the accused – the obvious difficulty of the appeal court assessing credibility from a distance and, finally, the fact that the question involves ordinary community standards.

HAYNE J:   How would you characterise the central thrust of the evidence given by your client at trial?

MR GLEESON:   It involved these propositions.  The first proposition was that at the commencement of the scheme he relied upon advice which he received from persons he considered to be reputable – firstly, Mr Feddema, and, secondly, the representatives of Strachans.  Secondly, that the scheme, as explained to him, involved for its efficacy he not having direct and real control over the money.  He needed to surrender control as an element of the scheme being efficacious and that the scheme did involve a surrender of control, as evidenced by the fact that part of the money never came back because Strachans said they were entitled to it.  That was the second key element to his belief. 

The third was that my particular client had clear involvement in the establishment of the scheme.  From about 1999 onwards he did not have direct involvement in the application of the scheme although, of course, he was able to receive money from the scheme.  The fourth element was that to the extent that a Mr Smibert in 2002 said he had concerns, that those concerns were not as to legality of the scheme but were as to what Mr Smibert took as an ethical approach to the scheme.  The fifth element was that after the arrest of Mr Egglishaw, which was suggested to be a warning sign, he, with Mr Stoten, had a lengthy telephone call with Mr Feddema who assured them that the arrest of Mr Egglishaw had nothing to do with their scheme and was related to other matters. 

The next was that to the extent that the case depended upon conversations recorded between Mr Hargraves and Mr Stoten, there was nothing in them inconsistent with an honest belief in the legality of the scheme.  There are some elements, but they are perhaps six or seven key elements which he gave evidence of in‑chief and in cross‑examination at length and he was tested on various matters and he gave his responses.  I can take your Honours to particular passages if that is considered of assistance.

HAYNE J:   Was it a case in which invoices were paid for services that were not provided?

MR GLEESON:   That was not the manner in which he said he understood the scheme to operate.

HAYNE J:   He said he had a different understanding of it, did he?

MR GLEESON:   Yes.

FRENCH CJ:   Did he refer to brokerage?

MR GLEESON:   He was asked about brokerage in‑chief and cross‑examination and he said he understood that that was an appropriate label which could be applied to what was occurring.  He said that he understood the mark‑up involved in the scheme was referrable to a change in costs when they moved from onshore to offshore supply of paper and he said apart from the first payment where the mark‑up was substantial and reflected a deposit required to establish the scheme, he was not involved in the particular invoices or the particular mark‑ups. 

Your Honours, in relation to the matter I have put at proposition 6, which are these seven factors which we say characterise approaches which the Court has taken in the last 10 years perhaps, could I without asking your Honours to go to them, except for one of the cases, note what we submit are five key cases on the proviso over the last 10 years which have indicated these factors are relevant.  The first case is Evans v The Queen 235 CLR 521 at paragraph 42 which was a case where the nature of the error was considered to undermine the actual jury verdict and therefore make the exercise of the appeal court difficult if not possible in applying the proviso.

The second case is Cesan v The Queen 236 CLR 358 at paragraphs 127 to 130 which was again a case where the nature of the error deprived the appellate court of the ability to place reliance upon the fact of a jury verdict. The third case is Gassy v The Queen (2008) 236 CLR 293 at 37 and 98 where, because the central issue was credibility, in that case credibility of the prosecution issues, it was very difficult for the appellate court to apply the proviso merely on the written record. The fourth case is AK v Western Australia 232 CLR 438 where the centrality of the issue in respect to which the error occurred was critical.

The fifth case and the one I wish to go to – it is relied upon by many parties – is Glennon v The Queen 179 CLR 1. This is a case where the error went to the issue of creditability which was of central importance to the defence. Your Honours see that on page 9 at about point 4. A little further down, like this case, it was one where the jury had accepted the appellant’s defence on some counts but not others, and the Court said:

In those circumstances, it is possible that, had the trial judge not misdirected them [on the critical point], the jury might have accepted the applicant’s testimony in relation to the [relevant matter] and acquitted him on that count.

The qualification in that statement which those against us rely upon is at the foot of page 9 over to page 10, that there cannot be an absolute rule that a misdirection going to the accused’s credibility denies the proviso.  This is of course in State jurisdiction not federal.  That proviso appears to be only to preserve the case where the error can be dismissed as not going to the central issue in the trial.  That is also clear from the second judgment of Justices Deane and Gaudron.  On pages 12 to 13 they deal with the error and at page 13, about point 5, they again identify that the central issue in the case depended entirely upon whether one was to believe the applicant or the complainant and accordingly, a direction wrongly detracting from credibility could not allow the proviso to operation. 

The qualification in their judgment is found in the following paragraph, which we rely upon in full, and they make clear that where the misdirection is of little significance relating to a discrete matter that is not really an issue or of marginal relevance, then perhaps there may be scope for the proviso, but otherwise:

where, as here, a finding as to an element of an offence necessarily depends on credibility, a direction which wrongly impugns the credibility of an accused or of his witnesses must be seen as involving a substantial miscarriage of justice.

That is, we submit, our case.  Your Honours, to conclude the case on the proviso, in proposition 7 we would submit that viewing the matter through the approach of this Court in Weiss, three conclusions would be open.  The first is that the negative proposition in Weiss is not satisfied.  On a review of the written record, the appellant could not be said to be proved guilty beyond reasonable doubt.  Secondly, the appeal court could not affirmatively find no substantial miscarriage of justice had actually occurred and, in any event, it was not a case to exercise any discretion under that section.  Your Honours, I can be brief on proposition 8.  Could the Court go to the respondent’s submissions.

Your Honours, I can be brief on proposition 8.  Could the Court go to the respondents’ submissions?  At paragraph 6 of the submissions in the Hargraves matter, the respondent urges this Court to find, or accept, the very type of argument it was running before the jury – that his evidence was unresponsive and evasive on a number of topics.  You then see some topics, all of which concern cross‑examination – none concern his evidence in‑chief – and you see a large series of page references down the bottom.  There is no statement as to precisely what answer he gave in each case which is said to be unresponsive or evasive.  Our short point is that that exercise is the very thing that ought not be done under the proviso in this type of case.

That is the central case. It was properly to be left to a jury performing its role under section 80. You will not see, of course, in the Court of Appeal’s reasons that they have gone through and made these sorts of findings. We submit this Court should not even entertain the type of submission in paragraph 6.

FRENCH CJ:   Just bear with us a moment, Mr Gleeson.  We will just adjourn briefly to consider what course we take.

AT 11.32 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.38 AM:

FRENCH CJ:   Mr Gleeson, in relation to this matter and the Stoten appeal we, for the moment, do not wish to hear argument in relation to section 80. We just want to hear argument in relation to the misdirection and the

proviso which you have addressed us on.  I think that means Mr Walker is next.

MR GLEESON:   If your Honours please.

MR WALKER:   May it please, your Honours.  May I address on those topics somewhat differently from the written outline we have handed up.  First of all, in the interests of dispatch may I adopt with respect what my learned friend has said including in answer to your Honours’ questions in relation to the status of Robinson.  It is to be recalled that the question of what Robinson meant as well as its application in the present case was the subject of detailed consideration in the Court of Appeal in volume 6 of the papers. 

Your Honours will have seen starting at page 2304 in paragraph 97 and continuing right over to the passages that my learned friend, Mr Gleeson, took you to - that is 2312, paragraph 126 and following - that intervening passage includes a consideration of Robinson in light of comments, one might say strictures, expressed upon special leave applications being refused and, in particular, the attention of their Honours below was drawn, as we draw your Honours’ attention today, to Justice Callaway’s comments collected and quoted at paragraph 125 in the Court of Appeal.

In our submission, the argument that Robinson is not authority is one not available below this Court.  In this Court it was, with respect, reasonable and faithful, indeed, for the judges to perceive that there was what Justice Kirby called in Palmer 193 CLR 1 at 43, paragraph 102, the rule in Robinson.  The next matter by way of ‑ ‑ ‑

GUMMOW J:   This word “rule” is very slippery, is it not?

MR WALKER:   It is, but it is understandable, with respect, that those advising and appearing and those sitting below this Court would read strictures, such as one sees expressed by the Court speaking through Justice Brennan in Ramey to which attention was drawn in the court below that this is indeed a rule by whatever name.  In other words, a pronouncement to be honoured as authoritative until, of course, this Court says otherwise.

HAYNE J:   So you adopt, do you, the proposition stated by Justice Callaway that a trial judge should not direct the jury, that the interest of the accused in the outcome of the trial is even a factor to be taken into account?

MR WALKER:   Except for the matter that his Honour was not there addressing, namely, to redress or prevent unfair excessive consideration of the matter where there will obviously be a drawing to attention of interest, yes.  So it may have to be mentioned in order to guard against unfair reversal of onus or something of that nature, but no more.

HAYNE J:   But you do not go so far as to say that the trial judge should direct the jury that the interest of the accused in the outcome of the trial is a factor that the jury may not take to account?

MR WALKER:   No, and I would expect many defence counsel would wince at the idea that that had to happen.

HAYNE J:   I would have thought so.

MR WALKER:   So, no, absolutely not.  Now, that leads me to the next point by way of elaboration we would wish to add and with respect to what we otherwise adopt for Mr Gleeson.  Naturally these are matters, be they truly directions or comments or, as one might be forgiven for thinking in the particular case, something halfway between, in this case something halfway between.  Whatever they are, they need to be adapted and tailored to the particular case and its running not only with respect to what are the real issues at trial which will determine the scope of many true directions as well as the possibility of true comments, but also to ensure that the jury does not have imposed upon it what might be called complete surplusage, matters which are correct but theoretical only in their application of the particular trial. 

When it comes to questions of so‑called interest, whether they are full blown bias matters or other matters which common sense and knowledge of the world will lead jurors to consider when assessing the credibility of a witness.  That surely will, of course, follow after the witnesses have not only given their evidence in‑chief but they have been challenged to whatever degree and in whatever mode they have been challenged.  That is why, with respect, as Mr Gleeson has already put to you and I do not need further to elaborate, Mr Feddema presented by reason of the actual forensic course in relation to his evidence a case for specific comment, if his Honour thought that was necessary in order fairly to present the respective cases that concerned his evidence, that the jury might take into account something in the nature of his interest concerning his professional standing, et cetera, or his reputation. 

That, in our submission, is an answer to the question which Justice Kirby in Palmer, paragraph 112, thought was simple, that is how to apply the rule, or what other considerations might produce as being rather difficult because if you make the general comment, the criticism that the appellants Hargraves and Stoten present in this Court will be made and if you make it specifically, there may be excited the kind of concern the authorities have raised why does this not apply or what is the mystery about talking about the accused’s evidence in this regard.

Now, between those twin poles of either simplicity, which seems to be the simplicity of complete reticence, or the difficulty of damned if you do damned if you do not say something about either people generally or specific people only without mentioning the accused, between them, in our submission, the only safe way forward is to ensure that either true directions or real comments should be restricted to the particular exigencies of the particular case.  That, in our submission, is accordance with all the practical approach as well as doctrine concerning the mode by which on appeal one may detect whether there has been miscarriage let alone a substantial one. 

aiding and abetting, the offence obviously being the same, importing.  Those are my submissions.

FRENCH CJ:   Thank you, Ms Abraham.  Mr Byrne.

MR BYRNE:   May the Court please, in illustration of how the matter went awry because of the way it was conducted below, and this covers both the importation and the attempted possession, and also the point discussed by your Honour Justice Bell in respect to the acts and assertions of the various parties, if I can invite your Honours to look at pages 812 to 815 of the record book, and this is simply an illustration which shows that the acts and assertions were, in any case, left to the jury as relevant and admissible and relevant to their consideration due to the joint criminal enterprise of all of the parties. 

Your Honours will see at the top of page 812, there is reference to “furtherance of the importation”.  Line 12, “group exercise”; line 47, “Mr Paddison . . . furtherance of the group exercise”; page 813, conversation between Mr Nerbas and Mr Reed in furtherance of the importation, and at the bottom of 813, going over, it is said by the learned trial judge:

the prosecution says that the acts and statements of Mr Reed and Mr Nerbas were in furtherance of the agreed common purpose, and go to establish the existence of a group exercise -

His Honour repeats “group exercise” at line 11, line 20, line 29, line 55, and then at page 815, lines 40 to 50, again talks about a group exercise suggesting “that Mr Nerbas was a party to a plan that had the common purpose of taking possession of drugs”.  So there is that cross‑infection of the wrongful basis of criminal responsibility across all of the offences.  That is the only matter I wish to respond to.

HEYDON J:   These acts of third parties supposedly brought in under Tripodi, no objection was taken to that evidence I gather.

MR BYRNE:   I am sorry, I missed that, your Honour.

HEYDON J:   No objection was taken to this evidence which is now said to be admissible pursuant to Tripodi’s Case.

MR BYRNE:   No objection was taken because it seems that the trial was conducted ‑ ‑ ‑

HEYDON J:   The error was shared by everyone.

MR BYRNE:   Yes.  May the Court please.

FRENCH CJ:   Yes, Mr Davis.

MR DAVIS:   Your Honour, only one matter.  At paragraph 51 of our outline, our principal outline, we list all the actions that Reed has taken and it can be seen from that that he was the principal offender, not only in a legal sense but he was certainly a very active actor in the process.  Other than drawing the Court’s attention to that, we have nothing further. 

FRENCH CJ:   Thank you, Mr Davis.  The Court will reserve its decision on these appeals on the arguments presented today.  The Court will otherwise adjourn until 10.15 tomorrow morning.

AT 3.55 PM THE MATTERS WERE ADJOURNED