Mackenzie v The Queen

[1996] HCATrans 78

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S144 of 1995

B e t w e e n -

ADRIAN SIMON MACKENZIE

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 9.33 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR P.T. TAYLOR, for the applicant.  (instructed by W.G. McNally & Co)

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

DAWSON J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, as is apparent from the summary of argument, the application turns essentially on two aspects.  May I put them very shortly.  First, whether in the circumstances of the case the verdicts of guilty under section 327(1) were fundamentally inconsistent with the acquittal on the counts under section 328.  That is the first aspect.

The second aspect relates to the matters dealt with in paragraphs 2 and 3 of the summary of argument, the matters relating to, to put it shortly, confidence and dogmatism and the absence of direct evidence of knowledge of falsity in perjury cases.  Your Honours, we accept immediately that the former matter, inconsistency of verdicts, is directed to the particular case.  No doubt it is unusual for the Court to grant special leave in criminal matters where no issue of general principle is concerned, but the Court’s discretion is not limited if there is an appropriate case of injustice, in our submission.

Your Honours, may I deal first with that issue.  The essence of the case against the applicant was that, when a solicitor for an accused at a criminal trial, he had given a perjured recollection of his observations at an interview held between the police and his client on 1 April 1990.  The provisions under which he was charged appear at page 180.  Your Honours will see the two of them set out there.  Section 327(1) is perjury; section 328 is in effect an aggravated offence, the circumstances of aggravation being the intention to procure a conviction or acquittal.

He was convicted on the counts under the first provision, acquitted on the latter.  One recognises of course that as a matter of absolute logic the verdicts might not be inconsistent, but criminal cases of course do not occur in a vacuum.  In the circumstances of the particular case, the view that the two verdicts are not inconsistent, whilst perhaps logically possible, is something that, in our submission, is practically a little bizarre.

GAUDRON J:   But why is that?  The jury may, for example, have taken the view that perhaps he committed perjury to retain his client base in Griffith.

MR JACKSON:   Your Honour, no suggestion of that has arisen, with respect, before today.

GAUDRON J:   No, but there were other possibilities.  If the jury had to speculate about motive or the reason for the action, that was one possibility.

DAWSON J:   You have just given the answer there, I think, that there is a theoretical possibility that the verdicts were not inconsistent.  But, practically speaking, that really does not appear to be so.

MR JACKSON:   That is our submission, your Honour.  We would seek to say what we have in paragraph 12 of our summary of argument at page 6.  No doubt a witness may give deliberately false evidence without necessarily having the section 328 intention.  But in a case like this where the witness is the accused person’s solicitor, the evidence is contrary to the Crown case in material respects and is adduced as part of the accused’s case in support of his evidence, we would submit, as we do in paragraph 12, that a verdict, the effect of which is that the solicitor gave evidence that he knew to be false but by giving which he did not intend to procure acquittal, is, with respect, unrealistic.

GAUDRON J:   But that inconsistency really does not take you anywhere even if it is said to be practically inconsistent because you have to work on the assumption that the jury found knowledge or non‑belief.

MR JACKSON:   Your Honour, if I could put it two ways, one has to work on the assumption that the jury found that he did not intend to procure the acquittal of his client.  That is the one thing that is clear.  The second thing is that the jury, on the other hand, found that he gave evidence which he knew to be false or did not believe to be true.  What we seek to say is that whilst undoubtedly, if one looks at those two concepts, one can see that the two can be put together in some cases.  Your Honour has given a possible example, I suppose, with respect, and there are other possible examples where a person might give evidence at a criminal trial not intending to affect the result of the trial.

But if one takes the particular case and says, “Why would a solicitor possibly give evidence along those lines unless he intended to procure acquittal?”, a matter that the jury has found not to have happened, it is very difficult to tie that up with the view that he, for some other curious and, to use the expression again, perhaps bizarre reason, would wish to give evidence that he knew not to be true.

GAUDRON J:   But does that not take you, instead of inconsistency, to the difficulties with the verdict so far as it relates to knowledge or lack of belief?

MR JACKSON:   Yes, it does, your Honour.  That is what we seek to ‑ ‑ ‑

DAWSON J:   That is your next point.

GAUDRON J:   That just leads you into that point, does it not?

MR JACKSON:   Your Honour, we would put it rather more highly than that, if I may.

DAWSON J:   In other words, it is hard - everyone can accept that - to see why the verdicts were as they were and one searches for some explanation.  Perhaps it should be found elsewhere.

MR JACKSON:   Your Honour, I do not think I can advance what I have sought to say about that first ground further except perhaps to say one other thing:  to what possible other end on this assumption than to seek to obtain an acquittal?  Could I come then to the point with which we deal in paragraphs 1(a) and 2 to 4 of our summary of argument, the relevant pages being the bottom of page 3 and then paragraphs 2 to 4 on pages 4 and 5.

May I invite your Honours to note something in passing in relation to that.  That is an observation by the Court of Criminal Appeal at page 196, about line 35.  Your Honours will see that their Honours there say:

As the jury were reminded, people who are mistaken can, nevertheless, be extremely confident, and unwilling to admit even the possibility of error.

That was not a direction by the trial judge.  The reference there is to something that was said by a character witness, Mr Morris QC who gave evidence.  There was no direction by the judge along those lines.

GAUDRON J:   There was no direction by the judge at the end of the day relevant to the submission you are now putting because, for reasons that I do not quite understand, the trial judge withdrew his direction about knowledge and lack of belief, leaving the jury with nothing to proceed on in that area.

MR JACKSON:   Yes, your Honour, that is the position.

GUMMOW J:   Just stopping there for a minute, Mr Jackson, it is not quite accurate, is it, what is said at page 192 line 55 in the Court of Criminal Appeal?  That rather brushes over all this rather complicated history of what went on at the trial, does it not?

MR JACKSON:   Yes, your Honour.  It is true to say, however, that the Court of Criminal Appeal had referred to the events - the course of the trial, although the particular aspect is not I think dealt with by the Court of Criminal Appeal at all.

GAUDRON J:   The part which concerned me is at pages 144 and 145.  The trial judge repeats his direction or makes some reference to it and he says:

I have on reflection reached the conclusion that those subsequent things that I told you were either wrong or confusing and I direct you to completely disregard them.

MR JACKSON:   Yes, your Honour.  It left the jury in a strange situation in the sense that what one had was what he said immediately above that at page 144 where he repeated it.  Your Honour will see that at about line 50.  He does not withdraw that but then withdraws the next part.  Your Honours will see on the preceding page, about line 49, he says:

I think I should reconfirm that an element of the offences charged is actual knowledge or did not believe.

That is where the passage seems to commence and that is really where the matter lies.

DAWSON J:   Is there anywhere where the trial judge directed the jury that a person may mistakenly give evidence and persist in the mistake and nevertheless not have given false evidence?

MR JACKSON:   Your Honour, the closest that the primary judge appears ‑ ‑ ‑

DAWSON J:   In other words, directed them that what the character witness said is a possibility.

MR JACKSON:   Yes.  The closest the trial judge gets is at page 7 in his general directions to the jury about witnesses, line 15 to about line 25, and perhaps at page 37.  Your Honours will see the paragraph numbered (2) where what he is doing is indicating the elements of the offence.  We have set out in the paragraphs of our submission to which I refer the various parts of the judgment of the Court of Criminal Appeal.  May we seek to say just this about it.  A person who gives evidence confidently and dogmatically, if I can use that expression, in relation to recollection of events, as distinct from, for example, matters of expert evidence, may or may not be intending to tell the truth or may or may not have a perfect recollection.

But confidence and dogmatism in giving the evidence as such does not reflect dishonesty.  It may be the product of dishonesty.  But the Court of Criminal Appeal appears to have regarded it as being itself a relevant test.  We have given the references, but may I refer your Honours particularly to the passage at page 196 commencing at line 50 and going through to page 197, about line 30.

DAWSON J:   Was there any direction about motive apart from procuring an acquittal?

MR JACKSON:   Your Honour, what was noted was that there was no apparent motive suggested apart from seeking the acquittal.  I cannot give your Honour the reference just at this moment but your Honours will see in the trial judge’s summing up to the jury that he refers to the fact that that was in effect the only suggestion made on behalf of the Crown, although it is right to say that both counts were before the jury on each matter.

Could I say that the third aspect is that to which we refer in paragraph 1(b) which your Honours will see at the top of page 4 and paragraphs 5 to 7 on page 5.  This is a slightly different point, of course, but the view expressed by the Court of Criminal Appeal to which we have referred on page 6 seems inconsistent with the finding of the jury on the section 328 counts.  We would submit that this is a case where there has been an injustice done, an injustice which should have been corrected in the Court of Criminal Appeal.

GAUDRON J:   What is it, defective directions though or an unsafe and unsatisfactory verdict, in your submission?

MR JACKSON:   Well, your Honour, it comes in the end to the latter, but could I say it comes in the end to the latter really from, I suppose, two streams.  The first stream is that there is an inconsistency in the circumstances in the verdicts, and I have tried to elaborate upon that.  But the second thing ‑ ‑ ‑

GAUDRON J:   But not an inconsistency of the sort that would automatically lead to an acquittal, for example?

MR JACKSON:   No, your Honour.  Your Honour is right in saying that.  The second thing is that the approach taken in the Court of Criminal Appeal to the use of evidence of confidence and dogmatism was in error.  The third aspect of it is - and this perhaps is really the part or perhaps the only part that turns on directions itself.  There should have been some direction given to the jury in relation to the use of confidence and dogmatism, as it were, if that was to be treated as having the effect that the Court of Criminal Appeal attributed to it.

DAWSON J:   You are really saying this is a combination of factors which leads to a trial going wrong.

MR JACKSON:   Yes, your Honour.

DAWSON J:   Where is the special leave point in that?

MR JACKSON:   Your Honour, we accept, as I submitted earlier, that as a general matter the Court does require for the grant of special leave that there be some point of general principle.  It would be right to say that not every case where there has been a conviction, where there has been some error in the trial, is one that results in a grant of special leave.  But we would seek to say two things about that.  The first is that there must inevitably be a question of degree involved and the second thing is that part of the Court’s function, if I may so submit with respect, is to deal not just with cases that involve a question of principle but also to correct procedural error, for example, in the courts below.  The Court has said that on a number of occasions both in relation to civil and, perhaps less frequently, criminal matters.

DAWSON J:   That has been said, that the duty of the Court is to develop and clarify the law and maintain regularity in the courts below.  It is the latter which you rely on?

MR JACKSON:   Yes, your Honour.

DAWSON J:   But the duty of the Court is not to right wrongs.

MR JACKSON:   Well, not as such.

GAUDRON J:   There might be two points of view on that.

MR JACKSON:   Your Honour, what I am seeking to say is that ‑ ‑ ‑

DAWSON J:   If you were to right every wrong, we would not be ‑ ‑ ‑

MR JACKSON:   It has always been the case of course in criminal cases, but the existence of the requirement for special leave means that the Court has a discretion and it becomes a question of the manner of exercise of the discretion and no doubt even things such as the mix of cases that the Court takes from time to time will change, depending on a variety of factors.  But, having said that, the Court has to deal with the cases as they come.  One of the important functions of the Court is to ensure that there is procedural regularity in the courts below.  Needless to say, the Court has to decide whether the case is sufficiently important to merit its intervention.  Your Honours, our submissions are that this is a case of that kind.  I do not think I can advance it beyond that.

DAWSON J:   Thank you, Mr Jackson.  Mr Cowdery.

MR COWDERY:   Your Honour, in our submission, could I say first that we rely on the written outline of the argument that has been presented.  In our submission, this is not a case in which it can be demonstrated that any injustice occurred to the applicant.  The jury was directed in respect of each of the elements of the offences under section 327 and in respect of the additional element that was required to be proved for an offence under section 328.  Those directions were developed in a logical and rational fashion in the course of the summing up and referred to in the Court of Criminal Appeal.

DAWSON J:   I am not sure that that is so.  Can you point to a direction which says clearly and unequivocally that a man, this particular man, may have been mistaken, pig‑headedly so, but that does not amount to false swearing.

GAUDRON J:   And that if that was a reasonable possibility, there should be an acquittal because that clearly was the situation in the case.

MR COWDERY:   I cannot point to a direction in those terms, but there are a number of directions in the course of the summing up that the jury must be satisfied and satisfied beyond reasonable doubt that the falsity was deliberate.

DAWSON J:   Yes, but that is a somewhat different matter, is it not?

MR COWDERY:   That they had to be satisfied when they made their finding of fact that the accused was not mistaken or in error in the statement that he made but made a deliberately false statement.  There were directions given on the specific intention to procure the acquittal of Barbaro which were quite separate, in separate terms, distinct in time, from those series of directions that were given about the need to find what was described as deliberate falsity or intentional falsity on the part of the applicant.

In our submission, those directions were sufficient to draw to the jury’s mind the fact that they had to consider the question of whether or not the applicant may have been mistaken and even dogmatically and emphatically mistaken.

DAWSON J:   Where were the jury left with the withdrawal of the direction in relation to this matter which occurred after there was some argument?

GAUDRON J:   Which, as I understand it, was directed to the question of mistake or the possibility of mistake.

MR COWDERY:   Could I take your Honours to that part of the summing up which begins at page 143.  Your Honours will see at line 50 - before that there were a number of submissions made by counsel for the accused which began at page 140.

GAUDRON J:   They were directed to the issue of mistake or the possibility of mistake, the directions that counsel then wanted, is that not so?

MR COWDERY:   Initially, yes.  Then, if your Honours go to page 143, after submissions had been made and the directions that had been given up to that point discussed, his Honour said at line 41:

I do not like that.  I have, during the adjournment, endeavoured to draft something.  I have not been happy with anything that I have arrived at.  I am wondering whether I should not simply withdraw it.

Mr Toomey said:

I would be content with that.

His Honour said:

I think I should reconfirm that an element of the offences charged is actual knowledge or did not believe.

Mr Toomey said “yes” as did the Crown.

I have tried to link mistake with the twin concepts of knowledge and absence of belief and I find it very difficult to arrive at something which I think is both accurate and will not go completely over the heads of the jury.

GAUDRON J:   It is not very difficult though, is it?  It is sufficient to say, if there is a reasonable possibility that he was mistaken, he must be acquitted.

MR COWDERY:   Yes, but his Honour chose to do that, in our submission, by referring to the need for them to find and to find beyond reasonable doubt actual knowledge for absence of relief.

DAWSON J:   But, you see, the danger, Mr Cowdery, is that the jury may think that if the man intentionally said what he said and it was false then he came within the second count.  That is the danger and it was not eliminated.

MR COWDERY:   With respect, your Honours, we would separate, as did the judge in the course of the summing up, the notion of deliberate falsity from the further element that was required, that is, intention to procure an acquittal.  There may be other reasons and it is perhaps futile to speculate but there may be a number of other reasons as to why a jury may not be satisfied of that further element of intention to procure an acquittal.

DAWSON J:   None were suggested to the jury.

MR COWDERY:   No, and the question of motive was referred to in the course of the summing up.  If I could refer your Honours to pages 28 and 29.  At the top of page 28, line 14:

The subject of motive arose in the addresses.  It is not an element of the crime charged in the first count or of the crime charged in any of the counts that the accused had a particular motive or indeed any motive at all.  It is not essential for the Crown to prove that the accused had a particular motive or any motive.  However, you can take into account the absence of any evidence of motive on the part of the accused in determining whether you are satisfied beyond reasonable doubt that the Crown has proved what are the elements of the crime charged - - -

DAWSON J:   Now, I do not want to be unduly critical of trial judges who have a very difficult job but there is a tendency just to recite various things that are required to be recited and not to relate them to the facts of the case.  Now, that is nowhere related to the facts of this case, is it?  What I am complaining about is a tendency for trial judges not to direct themselves to the particular problem in hand and to give a whole list of ritualistic directions without coming to the real problem.

MR COWDERY:   Your Honour, in our submission, he did draw that distinction in that passage.

DAWSON J:   Yes, he did.

MR COWDERY:   The passage goes on to then refer to the specific and additional element of the intention to procure an acquittal.  That was taken up again - - -

DAWSON J:   But why did he not say, “Now, what possible motive could this accused have”, if you accept that he did not wish to procure an acquittal, “of giving false evidence?  None has been suggested by the Crown; none emerges from the defence evidence.  It would be merely a matter of speculation on the evidence given.”  Why did he not say that?

MR COWDERY:   Perhaps he had in mind, your Honours, that the accused in his evidence had said that he did not know himself what effect his evidence was intended to have in the trial.

DAWSON J:   Perhaps he should have discussed that in relation to motive but a bland direction of that sort is of little assistance to a jury.

MR COWDERY:   Your Honour, the distinction was made because, on the next page, 29, he then went on to give a further direction about the fifth element of the offence under section 328.  He said that he had told them that the fifth element was that he intended to procure the acquittal:

Intention is more than merely foresight of the possible consequences of one’s acts.

And that resulted from the application that had been made by counsel for the accused for a further direction drawing a distinction between knowledge or foresight of the consequences and intention.

So, having directed the jury on motive and, we would submit, correctly pointing to the fact that there was no evidence of possible motive on the part of the accused, he then went on to give a separate direction and to draw that distinction in the minds of the jury between that and the question of intention.  We would submit that that was a sufficient and satisfactory distinction to draw in the context of the other directions that they had to be satisfied beyond reasonable doubt of the deliberate falsity of the evidence given by the accused.

Your Honours, my learned friend, in his submissions, made the statement that the jury in this case found that the accused did not intend to procure the acquittal of Barbaro.  In our submission, that is not so, with respect.  All that can be said is that the jury was not satisfied beyond reasonable doubt of the proof of an intention to procure Barbaro’s acquittal.  There was no positive finding the other way.  That may have come or been influenced by other evidence in the trial, for example, evidence that by the time of the committal of Barbaro in May 1990 it was common ground that the document that was in question was stained and that there were at least two of Barbaro’s fingerprints on it at that time.  This is a month and a bit after the incident in the police station at Griffith.

DAWSON J:   In other words, the evidence would not have helped Barbaro, really.

MR COWDERY:   No.  But Barbaro was really, to use a colloquialism, “gone for all money” and that whatever the accused, the applicant in this case, said about that had to be judged against the other evidence that was there and there to the knowledge of the accused as early as the time of the committal of Barbaro in May 1990.

BRENNAN CJ:   But that is a two-edged sword, is it not, because it makes you wonder why there was a conviction on the second count in those circumstances?

MR COWDERY:   With respect, no, because the elements - - -

DAWSON J:   I know that theoretically it is possible to draw a distinction but practically speaking, it is difficult to accept, is it not?

GAUDRON J:   It is the absence of any reason for doing what was done, together with the somewhat confusing directions, that make you think the jury just really got it wrong.

MR COWDERY:   There was clear evidence that the applicant had a very close relationship with this particular accused in a professional sense and perhaps to an extent more than that and that evidence was before the jury: the fact that he had gone out to Barbaro’s home on a Sunday morning and provided assistance and so forth, and the jury may well have thought that the accused did deliberately lie, doing so in some way intending to assist Barbaro.

DAWSON J:   But in a way which did not assist him and apparently did not assist him.

MR COWDERY:   Apparently not but, nevertheless, was satisfied that he deliberately lied about it.  As I say, it is not helpful to speculate as to what the jury may have had in mind but that is one possibility, that he was seeking to maintain a relationship and develop the relationship with Barbaro and with Barbaro’s family and associates.

It is quite possible, in our submission, in a practical way that the jury applied a distinction between an intention to procure an acquittal and an intention to assist in some way; to provide assistance, to provide support.  But to take that any further requires some degree of speculation as to what might have been in the mind of the jury.

In looking at that issue, our submission is that the trial judge properly, thoroughly and repeatedly instructed the jury, directed the jury as to how they were to approach the various elements of the two offences and what was required to be proved in relation to each one.  The emphatic nature of the evidence of the accused and his dogmatism, in our submission, is something that the jury would be perfectly entitled to take into account as part of the demeanour of the witness giving evidence before him, and they were directed on that issue, generally, in relation to witnesses.  That was, in our submission, an issue for them to resolve.  Of course, it could go either way.  Dogmatism and the delivery of evidence in an emphatic way may be evidence of falsity. 

On the other hand, it may be evidence of mistake by which the witness has convinced him or herself of the rightness of the evidence that is being given.  It was clearly raised in the evidence that was before the court.  It was raised in the course of submissions; the course of addresses by counsel, and it was dealt with by the Court of Criminal Appeal in the passage that has been cited.

Now, your Honours, in our submission, the judgment of the Court of Criminal Appeal correctly dealt with the issues that have been raised for

determination.  There is no demonstration in this case, in our submission, of injustice to the applicant such as would require the intervention of this Court and there is further, in our submission, no matter of general principle that arises in the arguments in favour of this application that would justify it.

DAWSON J:   That is conceded.

MR COWDERY:   Yes.  Your Honours, our submission is that having regard to the summing up as a whole and, more particularly, having regard to the way in which the Court of Criminal Appeal dealt with the issues that were raised before it, there is no injustice that has flowed to the accused by reason of the course of events.  The jury were perfectly entitled to come to the decisions that they did on the charges that were before them and for that reason there is no ground established as to why this Court should intervene.
Unless there is anything further, your Honours, those are our submissions.

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

Notwithstanding the measured and helpful arguments of Mr Cowdery, there will be a grant of special leave in this case.

AT 10.06 AM THE MATTER WAS CONCLUDED