Lapa v The Queen

[1996] HCATrans 77

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S150 of 1994

B e t w e e n -

SALVATORE LAPA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 1996, AT 12.18 PM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:   May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the applicant.  (instructed by Bryan Gorman & Co)

MR N.R. COWDERY, QC:   May it please the Court, I appear with my learned friend, MR P.G. BERMAN, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

DAWSON J:   Mr James.

MR JAMES:   Your Honours, we seek an extension of time in this matter also.  This is not a matter that raised the question of legal aid; however, it is a matter in which some of the matters that had gone before the Court of Criminal Appeal could not be detected as reflected in the judgment and, indeed, when the matter first came before this Court, it was necessary to go back to the Court of Criminal Appeal because it turned out that one matter that had gone before them on appeal had not been decided at all and that, consequently, your Honours have the benefit of a supplementary application book which reflects the judgment in which they dispose of that matter so that the special leave application, as it now stands, comes down to one matter only and that concerns the directions on the acceptance of evidence, onus and standard of proof.

In the summary of argument for the respondent, it was suggested that the passage of which we complain was a mere comment and did not, as it were, exemplify what, in our submission, permeates the summing up as to the acceptance of evidence so we have extracted for your Honours a sheet of references to the passages concerning the directions as to onus and standard of proof and how the jury is to regard evidence which, in our submission, show that the doctrine of “deal only with the evidence you accept” permeated the whole of the directions on onus and standard.  A copy has been provided to my learned friend.

DAWSON J:   Do you want us to read this?

MR JAMES:   If your Honours would.

DAWSON J:   Does your time run while we are doing that, or not?

MR JAMES:   Yes, it does, and that is why I did it this way, to make it faster, your Honour.

GAUDRON J:   Well, I must say I do not read the directions as having the fault which you ascribe to them.

MR JAMES:   If your Honour pleases, might I take the Court to page 3 of the appeal book and commencing at line 1 is the portion where the trial judge gives the substantive directions to the jury as to how they might perform their task of accepting or rejecting evidence.  Commencing with the passage which is abstracted second on our sheet he deals with the question of “whether you accept the evidence as being truthful or not” and refers to reliability.  In the passage commencing at line 12 he deals with “whether you accept with a witness has said”.  That “you may accept part” or

you may reject every word a witness says.  You may accept part of what a witness says and not be prepared to accept another part.

Then he refers to weight and the common formula.  Then he goes on to talk about assessing what you do “unconsciously day in and day out in your lives.” 

Then he deals with the proposition that is intuitively correct or attractive.  Then there is the proposition that you intuitively know is wrong; may reject it and they try to “ram it down your neck”, at the beginning of page 4, and you say:

For goodness sake, shove off.....Then there is the ground in between.

Those words, “Then there is the ground in between” is the one place in the summing up where his Honour adverts in his directions to the jury to the possibility that the jury, not having rejected evidence, may have been of the view that that evidence is doubtful.  His Honour then goes on to give an illustration which deals with the corroboration proposition and concludes:

and you check it, you might then be quite satisfied that what he told you in the first place is true.

ie, it merits full acceptance, and his Honour deals with that in the language of corroboration at the top of paragraph 5.  There is no example or even reference to what happens if you are left in doubt.  There is no example or even reference in the entire summing up to the proposition that was put by Justice Brennan in Liberato which we have abstracted in our summary of argument at page 5

The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

In our submission, the proposition is not limited to evidence which the jury positively accept in the way in which that word is used from time to time in the summing up.  It is evidence which they are unable to reject.  If the jury could not reject the account the accused gave in his statement beyond reasonable doubt, and none of that is said at any point, then the difficulty arose as to how much weight, how they could assess the evidence of Chang, the evidence of the telephone calls and the evidence of the surveillance police as to all of which positive evidence had been placed before the court as to matters which could go quite directly to creating a doubt as to the reliability of that evidence.

The material that could create a doubt as to the reliability was expressly referred to by counsel as the basis of his case and that can be found in the extracted passages at appeal book 47, line 20, approximately at point 5 on that page and in appeal book line 29 at approximately point 8 on page 2.  That was the argument for the defence, that is that the evidence of unreliability was such as to cast doubt and that evidence of unreliability as such, in our submission, does not have to be accepted or rejected or swept to one side unless accepted, if it is enough that the jury can say, “Well, that might well be true”, then they should take it into account in their assessment.

Your Honours, in our submission, the matter was raised in the Court of Criminal Appeal.  The argument was not extensive and, indeed, there was a summary put in the written submissions but there certainly was a direct application to his Honour in respect of the very matter by way of exception which can be found at page 55 of the appeal book, line 32:

Would your Honour then tell the jury that even if they are suspicious or they don’t know what to believe, that is still not good enough and they must acquit.

HIS HONOUR:  It was mentioned in counsel’s address.  I prefer to stick to black and white, that it must be beyond reasonable doubt.

Plainly enough, what is being raised is the Liberato.....doubt proposition and although his Honour gives the standard form direction that the jury must be satisfied beyond reasonable doubt and the standard form directions as to acceptance or rejection, they are not related in his summing up to the issues except in so far as he puts the contention of defence counsel as, as it were, a recitation or summary of what defence counsel had contended.

So that, your Honours, it is our submission that what was put to the jury when one looks at the idea of sweeping away what evidence one does not accept, must have worked a material disadvantage to the accused and that the accused would have been left in a situation where the jury would have been putting the question of doubt as to reliability out of their minds and that this is why the absence of some such direction as in Liberato, some such example that put the whole scenario in the examples his Honour gave and some such direction as, “In order to be satisfied of guilt beyond reasonable doubt you would have to be satisfied beyond reasonable doubt that his account is not true”, would have been necessary to overcome the effect otherwise that this passage, taken in conjunction with the other passages, would have produced in the summing up as a whole.

DAWSON J:   But, Mr James, in the end that issue was patently clear, was it not?

MR JAMES:   Well, it was clear in what counsel said.

DAWSON J:   And clear enough in what the judge said.

MR JAMES:   Well, your Honour, with the greatest respect, it is our submission it was not and, indeed, that it was bluntly enough put to the jury, “If you accept the prosecution then that is that” and “For the purposes of that, sweep aside the evidence that you do not accept”.  Now, although the incantation was there, relating it to the particular circumstances of this case and the evidence about unreliability, the jury could have simply swept all that aside and there would have been nothing left for counsel to argue on.  If the jury had listened to the summing up, that is the impression that they well would have got and, indeed, some of it, of course, puts the issue in such a fashion as to leave the accused in a remarkably disadvantageous position in relation to Chang.  If your Honours turn to page 1 of the extracts, appeal book 9, line 5:

You may accept Chang’s evidence that he was, amongst other things, an accomplice of the accused in respect of the transaction of supply, or being knowingly concerned, in the supply of the heroin.

If your Honours go down to appeal book 10, line 17 to below that:

In this trial you may well think there is no dispute, if you accept Chang’s evidence, that he was certainly well and truly involved in the supply of heroin.  If you are satisfied that he was involved in the supply of heroin, of course, that leaves the next question open.  Who,

if anyone, was his co-offender?  Was the accused a co-offender with him?

So, that question of reliability had real impact when it came to that question.  There was no issue in the case but that Chang was a supplier of heroin.  The question was, was his evidence reliable when he said it was the accused who was partied with him and, for that purpose, if you sweep away all the things that attack the reliability because you are in doubt about them, you are left with absolutely nothing the other way and that is why we submit that what has happened in this case is a most important matter meriting the grant of special leave and that is that the onus and standard have been whittled down by a direction which is commonly given and, in those circumstances, trials can expect to proceed only on the basis of what the accused is positively able to get the jury to accept and what the Crown can positively be able to get the jury to accept.  They are the submissions, may it please the Court.

DAWSON J:   Thank you, Mr James.  We need not trouble you, Mr Cowdery.

Having regard to the issues in the case and the context in which the direction complained of was given, the Court does not consider that any miscarriage of justice occurred.  Accordingly special leave to appeal is refused.

MR JAMES:   May it please the Court.

AT 12.31 PM THE MATTER WAS CONCLUDED