Malho v State of Western Australia

[2010] HCATrans 192

[2010] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P11 of 2010

B e t w e e n -

FRANCOIS MALHO

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 30 JULY 2010, AT 1.19 PM

Copyright in the High Court of Australia

MR S.B. WATTERS:   If it please your Honours, I appear for the applicant.  (instructed by Thames Legal)

MR J. McGRATH:   If it please your Honours, I appear for the respondent, with my learned friend, MR D.A. LIMA.  (instructed by Director of Public Prosecutions (WA))

CRENNAN J:   Yes, Mr Watters.

MR WATTERS:   Your Honours, we say here the position of Justice Owen ought to be preferred, and the view is encapsulated at application book 105, paragraph 57 of his Honour’s judgment with regard to the unequivocal fact that the prosecutor invited the jury in his closing address to speculate as to why the complainant would say what he did, and a few lines down, four lines down, in paragraph 57 his Honour Justice Owen states:

But the difficulty I have with the comment is that it clearly invited speculation:  that is the exact phrase the prosecutor used.  There was no evidentiary base to which the thesis could be pinned.

We say that where the majority erred was the majority identified the primary battleground as being reliability only, but as his Honour Justice Owen correctly identified, the focus of the defence case was the reliability and the credibility of the complainant, and on that basis the stance taken and approach taken by the prosecutor in his closing did have the possibility of drawing the jury into an impermissible line of reasoning.  As Justice Owen says, it was not corrected by, or was not addressed by the learned trial judge specifically by way of direction in his summing‑up to the jury.

BELL J:   Mr Watters, in that regard there was some discussion about the matter, but then does not appear to have been taken up the following morning.  Is that the right history of events?

MR WATTERS:   Yes, that is the correct history.  I appreciate your Honours may have the trial transcript.  In essence, it was raised - the way it fell, that counsel’s addresses fell – concluded toward the end of the day.  Defence counsel raised that issue toward the end of the day.  The learned prosecutor said that he did not think he had transgressed the principle in Palmer, that he would look at it overnight, but when the trial resumed, as your Honours will see from the transcript at application book 3, that is how it commenced the following day, simply his Honour saying:

Please be seated.  I will have the jury in, thank you -

and he began his summing‑up.  So it was not taken further by defence, and it certainly was not clarified by the prosecution.

BELL J:   The matter that I am raising with you is this.  In the event it had been taken further by the defence one would expect this is the sort of point that would have led to a request for a direction to the jury about the approach to adopt to that submission of the Crown, indeed to put it to one side.  Now, that did not happen.  Your contention is that this error, and I think the Crown accepts that it was unfortunate that the remark was made by the prosecutor, but nonetheless absent some request for the trial judge to frame a direction to deal with it, it might not be a matter giving rise to a successful appeal and a new trial.

MR WATTERS:   Your Honour, I accept that point.  The point I would make in reply, with respect, is the situation here is very different to one where the defence may not have raised it, but as your Honour will see at application book 99, paragraph 45 of Justice Owen’s decision, what he says, if I can read just from a few lines down:

It is a little difficult to tell from the way the trial transcript has been reproduced exactly when the objection was raised but it seems to have been during a break part way through defence counsel’s address.  It may not matter a great deal when the objection was made:  the issue was certainly raised.

So our submission, in answer to your Honour Justice Bell, is that the issue having been raised by the defence – yes, it was not pressed the following morning, similarly it was not clarified by the prosecution when clearly the transcript reveals that he had, but more importantly, with respect, the duty on the trial judge to ensure the accused receives a fair trial is incumbent upon him having sat there and listened to counsel’s closing addresses to have crafted his summing‑up that morning in such a way that he dealt with that point.

BELL J:   Well, absent a request for a direction, minds might differ about that.

MR WATTERS:   Well, your Honour, minds may well differ about that but, in our respectful submission, the principle that it is incumbent upon the trial judge to ensure the accused receives a fair trial – and I think the authority there is RPS v The Queen, a decision of the High Court, would stand as testament to that.  I accept your Honour Justice Bell’s point, but my submission is that it was certainly raised by defence.  She raised it as an issue.  The prosecutor said that he would address it or would look at it overnight.

BELL J:   Neither of the parties returned to it after there had been an opportunity to look at the transcript.

MR WATTERS:   Well, your Honour, I accept that.  Of course, that, with the greatest of respect, assumes the transcript was available the following morning of what had been said the night before, but assuming even if that was the case I accept that neither party revisited it.  In our respectful submission, that did not alleviate the obligation on the trial judge to specifically direct upon it.

As Justice Owen has identified in his judgment, was that those statements by the prosecutor were such that they saw his Honour take the view that the appeal ought to be allowed and the conviction set aside.  I have taken your Honours already to Justice Owen’s decision, in particular paragraph 57, and of course, at paragraph 59 – this is at application book 105 – what his Honour said was, in answer to your Honour Justice Bell’s observation about the summing‑up that he:

gave a general warning to the jury that they must not guess or speculate about matters which are not in evidence . . . However, the question of motive was not raised at all and he did not relate that general warning to the comment (that included the word ‘speculation’) made by the prosecutor.

His Honour went on there over the page, particularly in paragraph 63, to state:

The Palmer principles go to some of the fundamental tenets that underpin the criminal justice system, namely, the onus of proof and the standard of proof.

What we say is, as identified by Justice Owen at the bottom of paragraph 60 on application book 106, that last sentence we think is crucial where he said:

I think there is a real danger that the jury may have been influenced significantly by the speculative thesis concerning lack of motive.  This being so, a specific direction was called for.  As it was not given, it is not possible to say that no miscarriage of justice has occurred.

Where we say the majority fell into error, as compared to the view taken by Justice Owen, as I have already outlined, is that they were of the view that the only issue – the primary focus of the defence counsel’s case – and this is application book 89, paragraph 16 – was the issue of reliability of the complainant’s evidence, and I have already addressed that point.  But more so paragraph 15 of the President’s decision that transgresses pages 88 and 89 where she in essence viewed those statements by the prosecutor as somehow not going to a motive of a particular person for lying, but more representing an objective measure for testing the probability, and we say here that there was not – in particular the use of the word “speculative” that was used by the prosecutor heightened it beyond simply an objective measure for testing probabilities and raised it to the realms identified by Justice Owen.  We say here why ‑ ‑ ‑

CRENNAN J:   Can I just ask you before you go on, do you accept the statements of principle set out at paragraphs 12, 13 and 14 on the same page at which we were just looking, 88, in relation to Palmer?

MR WATTERS:   Yes, your Honour.

CRENNAN J:   Yes, thank you.

MR WATTERS:   Yes, and also there was the further comments made by Justice Owen with regard to the relevant authorities, in particular paragraph 48 on application book 100, where his Honour then sets out the relevant principles to be distilled from various cases and in particular what would be apposite to our case on application book 100 would be paragraph 3(c):

the effect of the question could be to reverse the onus of proof –

and here we say, of course, it was not a question because, of course, there was no evidentiary issues raised during the trial that went to this issue.  It was just something, with respect, that the prosecutor off his own back, if I can put it that way, raised in his closing address.  More so, paragraph 4 at application book 100 where his Honour said:

There is a further danger in permitting questioning of this nature.  The relevant issue is a complainant’s credibility and a complainant’s account gains no credibility from the absence of evidence of motive.

His Honour then dealt with that later when he said, if that is the case then why was it raised by the prosecutor in this case?       Your Honours, we say that this case we accept is different to Palmer, and that is identified by Justice Owen at paragraph 57 where he starts off with the phrase:

This is a different case from Palmer.

We say here where there was no evidence at trial of motive, the issues raised by the prosecution in their closing, and there is no specific direction

given by the trial judge to address that, for those reasons the grant of special leave ought to be granted so that this Court can address the issue with regard to the impact upon the trial in such a case, and also as stated in our draft grounds addressing the statement by the President where, with respect, she states:

There is a distinction between the motive of a particular person for lying and objective measures for testing the probabilities.

Your Honours, unless I can assist you any further, those are the submissions, oral submissions, I would make in support of the grounds.

CRENNAN J:   Thank you, Mr Watters.

MR McGRATH:   May it please the Court, there is no error revealed by the court below.  The judgment of President McLure, with whom Justice Wheeler agreed, correctly identified the relevant law and carefully analysed the potential effect of the comments made by the learned prosecutor.  Those particular utterances are outlined at application book page 86.  As your Honours have noted at application book page 88, the relevant legal principles are outlined, which principles have been accepted as correct by my learned friend.

We say that her Honour Justice McLure properly characterised the nature of the utterances of the learned prosecutor and that may in some way explain as to why neither counsel sought to revisit this on the next morning for a redirection.  On a fair reading of those utterances it cannot be said that the prosecutor specifically invited the jury to speculate about the absence of any motive.  Rather, as her Honour Justice McLure determined, this was at paragraph 15 of the reasons for decision at application book 88, that:

The prosecutor told the jury that it was speculative as to why the complainant might have made up his evidence concerning the sexual abuse.  He then went on to comment on the reasons why they should accept the complainant’s evidence.

The State does accept that the use of the word “speculative” is regrettable.  However, it does not breach the Palmer principle.  Certainly, the other paragraphs and sentences that follow that regrettable line in no way or form can be seen to breach the Palmer principle.  They are utterances that one would ordinarily expect in a case such as this.  It merely is matters which the jury would consider to determine the reliability.  They are, as Justice McLure noted, comments why the jury should accept the complainant’s evidence, being in substance that he was not the sort of man would…..to the drama of the experience.

Your Honour, it is really about likelihood.  It turns really on this initial sentence and we say that Justice McLure properly characterised that.  This particular case was not an oath on oath case.  The applicant chose not to give evidence.  He led alibi evidence from his brother that on the day he was in another courtroom; that is the day of the alleged offending.  The crucial issue was really the reliability.  However, as with all trials the issue of credibility must remain so we cannot take umbrage with what Justice Owen says, but it is not an oath on oath.  It was simply an invitation not to consider motive at all.  It was a statement of fact not to speculate.

Now, his Honour Justice Owen gives great weight, with respect, to the line using the word “speculation” and it is from there that his Honour has difficulty with the further utterances.  His Honour does not appear to be saying that the other paragraphs that appear at page 86 can in any way be a prohibition on the Palmer principle, but rather in the context of the line using the word “speculation” that it compounds the problem.

What we say in respect to that is that her Honour Justice McLure in the majority properly characterised that as not an invitation to consider motive.  It was not asking the rhetorical question about why would he say this, which in itself presents the answer and argument.  There was no presentation of argument by the learned prosecutor.

Your Honours asked my learned friend concerning the directions given by the learned trial judge.  The trial judge did give directions in respect to matters that were not in evidence, being that one should not speculate on such matters.  These are the normal directions one would consider.  In addition, there was a Longman direction and this is an application book 43, and those relevant passages are produced in the reasons for decision of Justice McLure at paragraph 17, being page 89 of the application book.

One would expect the learned trial judge to give those directions.  He does not though, and it is accepted, give a direction addressing the relevancy, or the irrelevancy, of motive; that is accepted.  However, neither counsel sought that and the submission is that it is understandable why it was not sought and that is because on a fair reading, as her Honour Justice McLure in the majority has identified, it cannot be said that the utterances of the learned prosecutor in any shape or form breaches the Palmer principle.

We say further that it is not a tenable argument in respect to Justice Owen that by reading the further paragraphs which clearly do not breach Palmer can some way collectively have formed an error of law.  In those circumstances we say that this is merely an application seeking this Court to revisit the proper application principles which were properly

identified to the facts which have been properly identified.  They are the submissions on behalf of the respondent.

CRENNAN J:   Thank you, Mr McGrath.

MR WATTERS:   Three matters in reply, if I may, your Honours.  Application book 98, paragraphs 42, 43 and 44 of Justice Owen’s decision, he sets out what I might call the troublesome paragraphs from the prosecutor’s closing address.  He does not just refer in that first quote to speculative.  What his Honour says is it needs to be seen in light of the other paragraphs and other utterances made by the prosecutor.  The following quote under paragraph 43 concludes with:

You might think that has a ring of truth about it.

In the middle of the following paragraph he asked the jury the question:

Is [GH] making all that up, this conversation?  It rings true –

At the commencement of the last paragraph on that page he says:

You might think that this is, as they say, so strange as to be true.  It is not the sort of thing that would ordinarily happen.

We say my learned friend put to your Honours that there was no invitation to speculate as to motive, but we say when you look at those paragraphs in full there is a very strong suggestion to the jury by the prosecutor that the complainant would not have said those things if they were not true.  We say that the comments made were in circumstances where the complainant’s credibility was directly in issue and those comments could have no other purpose than to bolster unfairly that credibility. 

The final point I would seek to make, your Honours, is that – as stated previously – his Honour’s summing‑up did not specifically, as Justice Owen identified, deal with this issue, and that was required in the circumstances of this case.  More so, those statements by the prosecutor were made in his closing and no doubt would have been ringing in the jury’s ears at the time when they retired and that was, of course, buttressed by the fact that they were left unaddressed by his Honour.  Your Honours, unless I can assist you any further those are the submissions I would make in reply.

CRENNAN J:   Thank you very much.

A decision of the Court of Appeal of the Supreme Court of Western Australia depended on the application of established principles in Palmer v The Queen (1998) 193 CLR 1. The conclusions reached by the Court of Appeal in applying the established principles to the particular facts of this case are not, in our opinion, attended by sufficient doubt such as to warrant a grant of special leave to appeal. Accordingly, the interests of justice, neither generally nor in this particular case, require the grant of special leave. Special leave to appeal is refused.

MR WATTERS:   If the Court pleases.

AT 1.42 PM THE MATTER WAS CONCLUDED