Lester v The Queen

[2004] HCATrans 526

[2004] HCATrans 526

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B16 of 2004

B e t w e e n -

JIM LESTER

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, 3 DECEMBER 2004, AT 1.59 PM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May your Honours please, I appear for the applicant with MR A.J. MOYNIHAN.  (instructed by Legal Aid Queensland)

MRS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

GUMMOW J:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, there are two aspects to our submissions.  The first is what is submitted to be a point of general importance to the criminal trial process and that is what use in any context can be made by the prosecution of defence tactics during committal proceedings.  Second point is whether in light of the prosecution’s apparent abandonment of its role in this trial as an independent minister for justice and its striving for conviction, the applicant has suffered a personal miscarriage of justice.

In relation to the first matter, that is committal, as recognised by this Court, the tactical considerations in asking and more importantly, not asking questions at committal, is an incident of the accused’s right of silence.  Is it permissible then, we ask, for the prosecution to put in argument to a jury that a witness could have been cross-examined at committal on behalf of an accused but was not.  Further, in light of the reasoning of the Court of Appeal in this case, does the answer to that question depend upon the purpose that the argument was put by the prosecution? 

May we take your Honours directly to page 106 of the application book where your Honours will see what was said by Crown counsel at trial in relation to the committal proceedings.  He said:

There was the opportunity to cross-examine her, if they wanted to, at the committal proceedings tactically she wasn’t cross-examined on his version, well fair enough, but she was there for cross‑examination.  Whatever was in her statement could have been challenged, tested. . . . To the extent that it was challenged or contested you might have thought they were pretty peripheral aspects that she was tested upon.”

Why we mention context is the two paragraphs in the judgment of Justice Davies, paragraphs [32] and [33], in which his Honour is effectively speaking for the Court of Appeal.  His Honour there seems to say that because the statement is directed not to inferences that could be drawn but to a defence of her statement, that that made a difference.  In our submission, those two paragraphs and the conclusions reached in them simply do not meet the vice and the breach of principle contained in the comments, namely, that they invite the jury to reason that the applicant’s evidence at trial was suspect or was a recent invention because the witness was not challenged with such versions at the committal.

HEYDON J:   This does not seem to have struck counsel for the accused at the trial as being a particularly prejudicial event.  He did not ask for any direction about it or that counsel did not ask for any direction about it.  Am I right?

MR DAVIS:   You are quite correct, your Honour.  Trial counsel does not appear to have sought redirections on any of the points of which we complain with the exception of objecting to the Crown Prosecutor’s questioning of the applicant as to the whereabouts of his son.  But we can deal with that in due course.

What we say, however, is that despite counsel’s attitude below, your Honours and the Court of Appeal were in the best position to assess whether or not this was a breach of principle.  We say it was a breach of principle in addition to what we have already submitted because a justification for the prohibition on using committal proceedings as a forensic weapon at trial is that juries cannot be expected to understand the complex considerations weighing upon the conduct or weighing upon those conducting such proceedings. 

We move then to what we submit is our second point and that is the Crown conduct.  We submit firstly, that in light of the Crown conduct in relation to the committal the applicant has not had a fair trial.  However, there are two major additional failings, that is the Crown has committed, in our respectful submission, to break the rules of a criminal trial by seeking adverse inferences to be impermissibly drawn against the applicant in relation to first, lies and then the failure to call the material witness.

The Crown’s response, at least in the written outline filed in this Court, is seemingly that it was only the prosecutor and not the trial judge who asked for such inferences to be drawn and, therefore, it is not a matter which would normally upset a conviction.  In our respectful submission, the correct question, with respect, is whether the trial as a whole was a fair one and here the trial proceeded with the applicant being asked, and this is the point which your Honour Justice Heydon put to me earlier, whether there was objection by trial counsel with the applicant during cross-examination being asked by the Crown Prosecutor where his son was, answering, “in Brisbane” where the trial was being conducted, and then despite objection being taken addressing the jury in these terms: 

I am saying to you as a matter of commonsense there is – there was and there is an available witness.

In our respectful submission, that unequivocally says to the jury that the applicant has deliberately not called his son as that son’s evidence would contradict what the applicant has said on oath.  That, in our submission, inevitably leads to an unfair trial.  The trial judge’s directions, which are set out at page 101 of the application book in a short paragraph, lines 50 to 56, are in what, with respect, are standard forms, a standard form about not calling of witnesses.  But there is nothing in those directions to rebut the inferences which we say flows namely, the Jones v Dunkel type inferences that he is not being called because he would not assist or would contradict the evidence given by the applicant.

We say, finally on that point, that the directions given do not even accord with the prescription given by this Court in Dyers v The Queen 210 CLR 285 in paragraph 15, and this is in the joint judgment of Justices Gaudron and Hayne:

Likewise, where there is evidence that there may be persons who could have, but have not, given relevant evidence, it is almost always desirable to tell the jury that they may not speculate about what those witnesses might have said but they must decide the case only on the evidence that has been led.

We say that the directions which are set out in paragraph [19] of the Court of Appeal’s judgment fail in both those respects.  We submit that taking all factors into account, this is a case which justifies a grant of special leave.  Those are our submissions, unless we can assist further.

GUMMOW J:   Thank you, Mr Byrne.  We do not need to call on you, Ms Clare. 

There are insufficient prospects of success of an appeal, were special leave to be granted, to merit the grant of special leave.  Accordingly, special leave is refused. 

The Court will adjourn to reconstitute for the remaining two applications. 

AT 2.07 PM THE MATTER WAS CONCLUDED