Hyde-Harris v The Queen

[2005] HCATrans 790

[2005] HCATrans 790

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B66 of 2004

B e t w e e n -

PHILIP ANTHONY HYDE-HARRIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 12.39 PM

Copyright in the High Court of Australia

MR A.J. KIMMINS:   If it pleases the Court, I appear on behalf of the applicant.   (instructed by Jacobson Mahoney)

MS W.J. ABRAHAM, QC:   If it please the Court, I appear with my learned friend, MR P.G. HUYGENS, for the respondent.  (instructed by Director of Public Prosecutions (Commonwealth))

GUMMOW J:   Yes, Mr Kimmins.

MR KIMMINS:   The first matter I wish to deal with is that the original application for special leave sought special leave to appeal so far as the question of conviction was concerned and also sentence.  I seek to withdraw the application so far as special leave regarding the sentence is concerned and seek to argue the one in relation to conviction.

GUMMOW J:   Yes.  Where is the draft grounds of appeal?  Page 122?

MR KIMMINS:   Yes.

GUMMOW J:   So it is ground 2?

MR KIMMINS:   That is correct, your Honour.

GUMMOW J:   Appearing on page 122.  That is not pressed?

MR KIMMINS:   That is correct, your Honour.

GUMMOW J:   Yes.

MR KIMMINS:   The applicant was convicted on the eleventh day of his trial of an offence of attempt to defraud the Commonwealth.  He was not legally qualified and he appeared for himself at trial.  The primary issue at trial was whether the prosecution established beyond reasonable doubt that at the time of his business dealings the applicant had the requisite intention to defraud the Commonwealth.  The prosecution case was left to the jury as a circumstantial case.  It is submitted that it was not a strong prosecution case.  At the end of the prosecution case the learned trial judge raised with the prosecutor the sufficiency of the prosecution case.  After a spirited discussion with the prosecutor the learned trial judge referred himself to the principles in Doney’s Case and at that stage ruled there was a case to answer.

After commencing his summing‑up on day nine and before he continued on day 10 the prosecutor raised with the learned trial judge a number of matters pertaining to his Honour’s summing‑up the day before.  Could I take the Court to transcript 28, line 21.  His Honour there indicated that the case had troubled him, as indicated to the prosecutor “as may be apparent to you”, and also at transcript 31, line 7, in the midst of the discussion in relation to his Honour’s directions the day before, his Honour indicated, “This case has troubled me from the beginning”.  At the end of the summing‑up no person, be it Mr Hyde‑Harris, nor the learned prosecutor, requested that the learned trial judge redirect the jury on any aspect touching the matter that we seek to ‑ ‑ ‑

GUMMOW J:   We have been saying over and over again that we are not a Court of Criminal Appeal. 

MR KIMMINS:   I accept that.

GUMMOW J:   Now, what is the error in the decision of the Court of Appeal?

MR KIMMINS:   The error in relation to the Court of Appeal was that ‑ ‑ ‑

GUMMOW J:   That has to be your starting ground.

MR KIMMINS:   Yes, your Honour.

GUMMOW J:   Now, where is it?

MR KIMMINS:   The error, we submit, is that the court did not find that there had been a miscarriage of justice or that the applicant had lost – sorry, that there had been the possibility of a real injustice being occasioned to the applicant by the full direction in paragraph 51 of the majority decision in Azzopardi being given to the jury.

HEYDON J:   You have to attack paragraph [5] on page 112 I think.  The Chief Justice there says that:

The directions given by the learned judge did not in terms say –

four things, but then the Chief Justice said:

But what the judge did say covered each of those points, although not by use of that language.

Now, what is wrong with that?

MR KIMMINS:   Our primary submission is this, that what his Honour has said there did not in fact cover the situations covered by the majority in Azzopardi.  The primary factors that his Honour raised I have tried to set out in page ‑ ‑ ‑

HEYDON J:   Page 127?

MR KIMMINS:   ‑ ‑ ‑ yes, 127 of the outline where I have attempted to dissect the four directions in Azzopardi and refer them to the Chief Justice’s decision.  It is with due respect to the Chief Justice, when one looks at what he has in fact indicated was sufficient in the trial judge’s direction to cover the majority’s decision in Azzopardi, it did not, with due respect, do so as his Honour indicated.  Primarily what the learned trial judge dealt with in his directions so far as the failure to the accused to give evidence primarily covered factors pertaining to the onus of proof.  So far as what his Honour the Chief Justice indicated was at points (a) and (b) of the Azzopardi decision, he referred there to the:

inference adverse to the accused, from the failure to give evidence, necessarily carried with it the direction that the failure had no evidentiary impact.

With due respect, that is a massive leap to reach, we would submit.  The majority decision in Azzopardi quite specifically dissected the first two points and felt them worthy of individual comment to a jury when one has regard to the reference to:

that the accused’s silence was “not evidence against the [accused]”;

It was specific, it was directed towards that point in itself and it was made – when one looks at it, one does not have to look behind it to see what the real meaning is.  The words speak for themselves.  So far as (b):

that the silence “[did] not constitute an admission by the [accused]”;

Once again, it was simple, plain English that any lay person would understand.  For his Honour to say that a lay juror would be able to interpret (a) and (b) from the Azzopardi direction in what his Honour said, with due respect, was incorrect.  So far as (c) was concerned, the majority decision referred to:

that the silence “may not be used to fill gaps” in the evidence led by the Crown –

Once again, simple English and it displayed without terribly much cerebral work what was meant, that if there is no evidence given by an accused person then that cannot fill any gaps in so far as the Crown case was concerned.  His Honour then refers – and I am looking to the right‑hand side of the column – to part of the learned trial judge’s direction when he indicated that:

the failure of the appellant to give evidence “does not make the task that confronts the Crown any easier” –

With due respect, that relates wholly and solely to the onus of proof.  Once again, it reverts back to what the directions previously given by the learned trial judge on what the onus of proof was.  It does not cover what the learned Chief Justice indicated that it did.  So far as (d) was concerned, it is the learned Chief Justice accepts that there was no specific reference made to the make-weight direction, but then purports to say that if one – sorry, I withdraw that – that:

the final statement by the judge that the failure “does not change the fact that the Crown retains the responsibility to make out the guilt of the accused” –

is another way of saying what this Court indicated was an appropriate direction, ie, that the failure to give evidence by an accused person may not be used as a make-weight.  Once again, what the learned trial judge directed as per the (d) point and also the Chief Justice found reverts back to the onus of proof.  It does not specifically deal with the aspect of the failure of the accused person to give evidence.

GUMMOW J:   Now, this seems to have been a fairly strong case, if one looks at paragraph [2] on page 111, the transaction out of which this refund was sought.

MR KIMMINS:   There was really no factual dispute so far as – well, there was no factual dispute as such.  It was really what inferences could be drawn from that material as to whether in fact there had been an intent to defraud the Commonwealth at the time of the undertaking of the business dealings.  So I revert back to what I indicated to the Court before, the learned trial judge found problems so far as the case was concerned and this was on the eleventh day or the tenth day of the trial, having expressed at least once prior to the conclusion of the evidence in the case, that he had problems with it.  The reason I took the Court to that was to indicate that it was not a strong case, with due respect.

One of the factors that, we would submit, would cause this Court to come to a conclusion that this is an appropriate case for special leave to be granted was in relation to the differences of opinion which seemed to have been adopted by a number of State appellant courts so far as this particular point was concerned. 

The decision of the New South Wales Court of Appeal in Macris [2004] NSWCCA 261 was handed down on 3 August 2004. The court in that particular case was faced with what we would submit would be a far closer direction to the Azzopardi direction than that given by the trial judge in the instant case.  The court really took up the point at about paragraph 28 of the decision after having looked at the trial judge’s direction and also what this Court in Azzopardi had to say.  At paragraph 28 the court indicated, second line down:

the jury was warned clearly and on a number of occasions that the onus was at all times upon the Crown, that the appellant did not have to give evidence and no inference could be drawn against him by him not doing so.

They then refer to the references in Azzopardi and in paragraph 29 indicated that:

However, his Honour made no reference in his summing up to the requirements of the Azzopardi direction that the jury be warned that the accused’s silence in court may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt.  This omission involves error.  Although the Azzopardi direction does admit of cases where a direction in its terms may not be necessary (“…almost always be desirable…”) there is nothing in the facts of this case which would make such a direction inappropriate.

The court then considered in paragraphs 30 and 31 the effect of not being directed in relation to those two specific directions and came to the conclusion that:

the deficiency in the direction gives rise to the possibility of a real injustice being occasioned to the appellant.

That is the submission that we would make adopting the words of the court there.  The court there also considered that – sorry, in New South Wales there was the rule 4 of the Criminal Appeal Act which also required or specifically enshrined in legislation the fact that if a point was not taken at first instance before a trial judge, then there should in fact be extraordinary circumstances before leave be granted. 

From Macris’ Case one looks at the next in the chronology is this matter of Hyde‑Harris.  So far as the differences in opinion between the decision of the Chief Justice and also that of the Court of Appeal in New South Wales it seems to, we would submit, come down to what I have already discussed with the Court in relation to his Honour’s, I would submit, sweeping view that what was said there was sufficient and covered the Azzopardi direction, but also two other points and that is this, that on page 112 over to 113, more so 113, the question of this Court speaking in Azzopardi in terms of “desirability, not necessity”. The warning by this Court prior to the four points being discussed at paragraph 51 was:

if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury –

The Chief Justice accepted or opined that desirability was not sufficient to necessity.  We would submit that when one reads the learned Chief Justice’s decision he has effectively come down to a conclusion that in this case near enough was good enough.  When one looks at or contemplates what type of situation, using the words from Azzopardi, “almost always be desirable”, what circumstances would it not be desirable to give a direction as per paragraph 51?  It is submitted that if the only time that a paragraph 51 direction in terms of Azzopardi would not be given is if a Weissensteiner direction, as identified by the Court in Azzopardi, was given.  It is hard to think of any other particular set of circumstances or cases when it would not be desirable.

The second point when one looks at the Chief Justice’s decision is the reference to the Bench Book at page 113 of the application record book.  The Chief Justice refers in terms to the Queensland Supreme and District Courts Bench Book where he identifies that the terms of Azzopardi in the paragraph referred to before is extracted in the notes.  This is not a case where a trial judge was forced to look at authority himself and attempt to discern what was required in a summing‑up or not.  It was blatantly spelt out in black and white in the judge’s Bench Book.  It was the preferred direction to be given and it was specifically word for word in tune with the majority decision in Azzopardi. 

His Honour for whatever reason chose to stray from the use of the Bench Book when directing the jury and it is of relevance to note that his Honour the Chief Justice at paragraph [10] or line 22 on page 113 stressed again that judges should be encouraged to utilise the Bench Book.  In the application for special leave we have suggested that where a situation arises where this Court has spoken in terms of a direction almost always being desirable, that the Bench Book itself repeats chapter and verse the majority decision of this Court as being the preferred direction to be given to a jury in a case similar to this, then a failure to give the full direction as required would lead to the circumstance that there has been a miscarriage of justice or that there has been a possibility of a real injustice being occasioned to the applicant by the failure to give the full direction.

The point was further discussed in a number of other authorities which followed shortly after this decision was handed down.  In the Queensland authority of DAH [2004] QCA 419 which was handed down on 5 November 2004, so about two weeks after the decision in Hyde‑Harris, the court came to consider in that case once again this proposition.  I should submit from the start that the learned trial judge’s direction in DAH was in fuller terms and closer to the majority decision in Azzopardi than the instant case. Justice White at paragraph 84 of that decision accepted the proposition that the majority decision in Azzopardi applied specifically to trial courts in Queensland. That is at page 26 of the decision in DAH.

GUMMOW J:   How could it be otherwise?

MR KIMMINS:   Yes, I accept that, your Honour.  So far as the remainder of her decision at paragraph 85, her Honour came to the conclusion that so far as the words “almost always be desirable” that once again it was not mandatory as such and that once again, we would submit, that near enough was good enough.  We would submit that when one looks at the learned Chief Justice’s decision on the desirability point, her Honour Justice White’s decision so far as that is concerned, this appeal presents as a worthy vehicle for this Court to identify what is the minimum standard required in a direction from a trial judge in a trial at first instance where an accused person does not give evidence. 

Further, at paragraph 86 of her Honour’s decision she quotes from the Bench Book, the introduction thereof, where she refers to the phrase that summings up are to be “tailored to fit the facts of the particular case”.  We would submit in the circumstances that nothing has been shown in the respondent’s outline here or nothing appears in the decision of the Court of Appeal to indicate any need to tailor in any way, shape or form the usual or the standard direction which has been identified by this Court and also in the Bench Book in this particular case.  Nothing appears at any of the stages to indicate why it was undesirable to give the desirable direction. 

Her Honour came, finally, to make some comments in relation to the use of the word “make-weight” and said it would not be of much assistance to a jury to be directed in those terms.  If that be the case, it is submitted that a simple definition of what “make-weight” is would amply cover the situation by giving further assistance to the jury.

What the point is that we seek to make is, what is the minimum direction which is required in a case so far as where the accused person does not give evidence, and whether in fact the minimum standard is what was outlined by the majority.  The next of the decisions in Queensland was the matter of Surrey [2005] QCA 4, and that was handed down on 4 February 2005. So far as ‑ ‑ ‑

GUMMOW J:   Yes, just finish what you are saying.

MR KIMMINS:   Yes.

GUMMOW J:   What do you want to get out of Surrey?

MR KIMMINS:   Yes, so far as Surrey was concerned, it adopted the stance specifically adopted by Justice White, and specific mention was made of her decision in DAH, and also the decision in R v Nicholson and Hyde‑Harris which is the case that we represent before this Court.  So, specifically, Surrey followed on from the two other Queensland authorities.  I thank the Court.

GUMMOW J:   Thank you.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, in my submission, the application is based on the proposition that to comply with paragraph 51 of Azzopardi the precise words need to be adopted and, in my submission, such an application and argument is misconceived.  The starting point, with respect, in relation to this case is that the learned trial judge did direct in the spirit and intent of paragraph 51 of Azzopardi, albeit not using the precise terms.

GUMMOW J:   Is there particular paragraphs you point to in the summing‑up?

MS ABRAHAM:   Your Honour, the paragraph is highlighted in the judgment of the Court of Appeal on page 111 of the application book.

GUMMOW J:   Yes.

MS ABRAHAM:   This of course was in the context of there being a direction shortly before about there being no burden or onus cast upon the accused person to prove his innocence.  The responsibility for proving guilt in a criminal trial remains throughout upon the Crown, and so those directions had been given immediately before, and that is at page 13 of the application book. 

In my submission, the directions given do address the evil that Azzopardi is designed to address, and that is to avoid the jury reasoning simply because an accused has not given evidence that they might use that in some way.  If your Honours consider the directions that are set out on page 111, in my submission, the learned Chief Justice quite correctly concluded on page 112 that those directions did indeed cover the terms of Azzopardi.

In my submission, this Court in Azzopardi did not mandate that those terms are required to be given to comply with the direction.  In my submission, it is apparent from the authorities that what occurs and, indeed, has occurred and has since this decision, with the exception of Macris, the one New South Wales case, is that if a direction was considered desirable, the Court considers the terms that were used in giving that direction and determines whether that is an appropriate direction in the circumstances, given what the intent of Azzopardi was. 

I say Macris stands up on its own.  In the Crown submission it does and, indeed, in decisions of the Court of Criminal Appeal in New South Wales since then it has been held to be wrong in law, because the courts since in the matter of Wilson, and there is a matter, indeed, after that, have considered that one does not need to follow the words necessarily, but what one does is look at the direction and determine whether the intent has properly been covered to avoid any reasoning in the manner talked about in Azzopardi.

Your Honours, there has been reference to the Bench Book and that, indeed, what should have happened is the Bench Book should have been followed.  It is obvious that a Bench Book is there to provide guidance to trial judges.  In the Crown’s submission, this Court not having, in effect, directed or found that the words were necessary, the precise words were necessary that were outlined in paragraph 51, those words do not become necessary simply because a Bench Book has those as the terms of the direction. 

So, in my submission, the Bench Book cannot elevate to mandatory that direction in those precise terms.  If that was so then, of course, giving a direction in accordance with a Bench Book would make you immune and that is clearly not the situation.  It is for, indeed, this Court or, indeed, courts of appeal to determine what the appropriate law is, not Bench Books.

GUMMOW J:   We do not need to hear you any further, Ms Abraham, thank you.

MS ABRAHAM:   Thank you.

GUMMOW J:   Yes, Mr Kimmins, anything in reply?

MR KIMMINS:   The only matter I wish to raise is so far as the decision of the New South Wales Court of Appeal in Wilson.  With respect, the court there considered that rule 4 of the Criminal Appeal Act was in fact relevant to that case and basically dismissed the appeal because of the provisions of that particular section.  Finally, in that particular case at paragraph 35 Justice Hunt indicated:

Whilst the trial would not have suffered had the whole Azzopardi direction been given, I do not accept that it was “desirable” for the missing ingredients to have been included in the terms expressed by the joint judgment in the directions given in this case.

Once again, the use of the word “desirable” seems to have presented itself as an escape clause for courts of appeal wishing to dismiss this point and, we would submit, in direct contravention to the majority decision in Azzopardi.  I thank the Court.

GUMMOW J:   The summing‑up in this case was adequate to express the substance and the intent of what was indicated in the joint judgment in Azzopardi v The Queen (2001) 205 CLR 50 at 70 [51]. Accordingly, there are insufficient prospects of success to warrant any grant of special leave and there has been no miscarriage of justice. Special leave is refused.

We will adjourn to reconstitute.

AT 1.07 PM THE MATTER WAS CONCLUDED