Johnson v The Queen

[2011] HCATrans 213

[2011] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S65 of 2011

B e t w e e n -

PETER JAMES JOHNSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 AUGUST 2011, AT 11.28 AM

Copyright in the High Court of Australia

MR G. O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR P.D. LANGE.  (instructed by Matouk Joyners Lawyers)

MR L.A. BABB, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes. Mr Reynolds.

MR REYNOLDS:   Your Honours, before I start, I need an extension of time.  I understand that is not opposed.

FRENCH CJ:   Extension is granted.

MR REYNOLDS:   Thank you, your Honour.  Your Honour, this application relates to a document which was provided to the jury in a murder trial which was, in substance, a written submission by the Crown containing all the Crown’s arguments on the circumstantial evidence – this being a wholly circumstantial case – and referring to none of the accused’s arguments in relation to that circumstantial evidence.  There are two points, two short points, which we submit warrant special leave.  The first is, can such a written submission by the Crown ever be provided to a jury, and secondly, if it can, in what circumstances and subject to what restrictions?  There is a decision ‑ ‑ ‑

FRENCH CJ:   The trial judge sought to see that it was formulated in such a way that it would not constitute a submission.  He specifically raised that question, did he not?

MR REYNOLDS:   He did, but I will not bother to take your Honours to the text of it.

FRENCH CJ:   Yes.

MR REYNOLDS:   The effect of the whole of the document is that it is submissional, and ‑ ‑ ‑

KIEFEL J:   The defence not only went along with this process, as I understand it, the submissions made – addresses made by the defence – were made by reference to the document.

MR REYNOLDS:   Well, certainly there were submissions made on behalf of the accused orally, I cannot disagree with that proposition, but ultimately as this Court pointed out, if I can take your Honours to page 178 of the application book, at about line 10, this is a reference to the joint judgment of the Chief Justice and Justices Brennan and Deane in Butera v The DPP:

In every case, even when an accused consents to the admission of the document, the trial judge should bear in mind the overriding consideration of fairness to the accused and the risk involved in allowing the document to be taken into the jury room.

This was a document which, I submit, was on no view fair to the accused, and if I have to it is my unfortunate duty to submit that it is impossible to say that allowing the jury to have copies of this document was in the interest of the accused.  The only decision ‑ ‑ ‑

KIEFEL J:   How does the unfairness – I mean, the question as you have posed, whether such a document should ever be admitted, raises it rather in the abstract, but how do say the unfairness was worked in this case?

MR REYNOLDS:   Well, if I can take your Honours to the only real decision that is in the reports that deals with this issue, the decision of Justice Hunt in the course of a trial in the matter of Savvas (1989) 45 A Crim R 38, which your Honours should have? Your Honour notes on the first page there, the second paragraph, that there is an accepted practice that directions of law can be given to the jury. He notes at the bottom of the page that:

No decision has been found in which consideration has been given to whether one or other of the parties may be permitted to give to the jury in a criminal trial a document which sets out that party’s arguments on factual issues which have arisen in the trial.

The problem with it, to address your Honour’s question, is dealt with by his Honour on the following page, page 39, about halfway down the page where in the paragraph beginning “A criminal jury trial”, his Honour says this:

A criminal jury trial obviously gives rise to entirely different considerations to those applicable to a civil jury trial:  Petroff at 113.  If the Crown Prosecutor were to put before the jury a written record of his address, the accused would inevitably argue that the propositions stated in it would be given an unfair prominence.

I so submit here:

In my view, it is no answer to say that it is open to the accused to provide his own written refutations of those propositions –

et cetera.  Further down the page, at about point 8, the paragraph beginning “Of course”:

Of course, when the document has been prepared by the trial judge, it would no doubt be afforded in the eyes of the jury an authority which might well not have been afforded it if the document had been prepared by the Crown Prosecutor.

Now, in this case, your Honours will have noted from line 10 on page 175 of the application book, this document was actually handed to the jury by the judge which, we submit, makes it even more likely, as Justice Hunt said, that it would have an undue influence on the jury in their deliberations because it gives it a veneer of objectivity and impartiality which, I submit, on no view does that document have.  So, Justice Hunt went on, on the following page at page 40, to say – and this is about a quarter of the way down the page and I paraphrase – that in order for a document of this kind to be placed before the jury for their use in the jury room, there must exist some exceptional circumstance, and he goes on to say that in his opinion if there is a complex case then it may be that that warrants application of the proposition that there is an exceptional circumstance.

Now, here, as your Honours will have seen from the appeal book page 39, line 11, the issues were “very simple indeed”.  The Crown, secondly, does not submit for a moment, as I understand the submissions that are made, that this is an exceptional case.  The document contains only the Crown’s contentions in a highly argumentative way – not those of the accused.  The availability of this document in the jury room as the cases say, particularly Driscoll, must necessarily have had a great deal of influence over the deliberations and an influence which is out of all proportion to the weight of the document, and as I said a moment ago, the fact that the trial judge himself handed this document prepared by the Crown to the jury gave it a veneer of objectivity and impartiality which on no view it has.

FRENCH CJ:   I think you properly draw attention at 175 to, as it were, the disclaimer that the judge entered in relation to the document.  You say that is simply to be disregarded?

MR REYNOLDS:   Well, it has been suggested there – this is at about line 8 – that this is prepared with the assistance of the parties, and as your Honour would point out ‑ ‑ ‑

FRENCH CJ:   I am referring to the next paragraph, really.

MR REYNOLDS:   ‑ ‑ ‑ it is not evidence and it is not to be treated as evidence, but giving a jury a document like that to take into the jury room inevitably – I mean, counsel say that even with professional judges you have a great advantage at a hearing if you are able to hand up written submissions, so if the judge reserves and goes away and thinks about the matter, that that permanent record that the judge has will give that party an advantage.

KIEFEL J:   I did not know judges were so impressionable.

MR REYNOLDS:   Well, your Honour ‑ ‑ ‑

FRENCH CJ:   Only because they might forget things.

MR REYNOLDS:   But all the more so, we submit, with a jury and particularly where – I mean, things have not got to the stage, we submit, where juries in criminal trials are to be given written submissions on the facts, particularly just from one party.  It has been one of the obvious developments of the law over the last 20 years that there is more and more reliance, I have to accept, on written material; there is less orality, as it is put.  As Justice Hunt said, very often juries these days are given a document which sets out the elements of the offence.  I would suggest that it may be appropriate if one is talking about the ultimate primary facts which the Crown seeks to prove, that a list of those facts which it seeks to prove might perhaps in a circumstantial evidence case usefully be put to a jury.  When we leave that behind and we come to a case which is purely submissional, recording everything that the Crown says about the circumstantial case, then that crosses a line, and we submit that a document of this kind – as I have said before – first of all, never should be allowed to go to the jury, and I do put it that high.

KIEFEL J:   Mr Reynolds, was this point taken in the Court of Criminal Appeal?

MR REYNOLDS:   Well, my client represented himself in the Court of Criminal Appeal, and perhaps for that reason and perhaps for others, the point was not taken so there is not any consideration of the point.  In response to what your Honour is putting to me, this is about as short a point as one would get and my client, obviously, is only seeking a retrial and it is a case which for him has the most serious consequences that the criminal law allows.  It is an argument which could be presented in a very, very short compass in less than half a day, and we submit that it is a matter of importance because if this practice adopted by the trial judge in this case is correct it is going to affect arguably all trials, certainly all those involving a case based solely on circumstantial evidence.

Now, there is a Rubicon that is crossed here.  We say that the trial judge, with respect, in allowing this to happen has allowed something

which is inevitably unfair, and the point of principle, as it were, that is raised is, has in criminal trials the practice of orality been left so far behind that this Court is going to allow written submissions on the facts, detailed written submissions on the facts, to be handed to the jury for their consumption in the jury room, and if it is going to allow that, then what are the strictures, what are the restrictions, what are the conditions?  A short point but we submit an important one.  If the Court pleases, those are my submissions.

FRENCH CJ:   Thanks very much, Mr Reynolds.  Yes, we will not need to call on you, Mr Babb.

This application for special leave suffers from a number of fundamental difficulties.  A document of which the applicant now complains was produced by the Crown at the request of the trial judge, but was subject to discussion with defence counsel.  Not only did the applicant’s counsel offer no objection to the jury’s use of it, he structured his address around it, pointing out explanations consistent with innocence in that process.  The applicant, who represented himself in the Court of Criminal Appeal, did not raise the ground.  He did contend that his lawyers were incompetent, but not for a reason connected with the use of the document.  That ground was rejected in any event.

The provision of such a document clearly requires careful consideration.  However, the circumstances of this trial do not give rise to any real question of unfairness to the accused.  The trial judge was careful not to impress the document with the court’s authority.  In our opinion, the case is one which does not warrant the grant of special leave.

Special leave will be refused.

AT 11.42 AM THE MATTER WAS CONCLUDED