Merritt v The Queen

[1992] HCATrans 48

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S90 of 1991

B e t w e e n -

NOEL RICHARD MERRITT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1992, AT 12.49 PM

Copyright in the High Court of Australia

Merritt 1 13/2/92

MR J. BASTEN:  I appear for the applicant, if the Court

pleases. (instructed by V. Jeavons, Aboriginal

Legal Service)

MR R.O. BLANCH, QC:  May it please the Court, I appear for

the Crown with my learned friend,

MR A.M. BLACKMORE. (instructed by the Director of

Public Prosecutions (New South Wales))

BRENNAN J: Yes, Mr Basten.

MR BASTEN:  Your Honours, might I at the outset hand up a

bundle of authorities which may become relevant?

BRENNAN J: Yes, Mr Basten. Mr Basten, we will adjourn

shortly but is there any addition that you have to

make to the summary of argument that appears in the

application book?

MR BASTEN: Perhaps if I could give Your Honours a brief

summary of the argument.

BRENNAN J: Just an outline, yes, if you would.

MR BASTEN:  Yes. Your Honours will appreciate that the case

is one which involves further problems arising from

disputed oral confessions. The two ways in which I

seek to address it is firstly that although this

Court in McKinney and Carr have accepted the very

real dangers and difficulties faced by an accused

challenging such evidence, the manner in which the Court of Criminal Appeal dealt with a challenge on the basis of unsafe and unsatisfactory verdict did not adequately take account of the difficulties and

dangers and they, in effect, have negated their

responsibilities because of the principal issue of

credibility to the jury finding. I would need to

develop that point a little in terms of the

directions given to the jury and what they said in

regard to their role.

My second point is that if, indeed, there are

realistically difficult problems for a court of

criminal appeal to assess independently of the

evidence that the jury accepted in such a case as
this and, in my submission, there are such

problems, then it is open to this Court to

reconsider more precisely what the role of the

trial judge is in considering whether to let

evidence go to the jury, albeit that the evidence

is evidence on which the jury could convict where,

for example, the trial judge were not himself

satisfied that the caution which he is required by

McKinney to give would be effective in terms of the

circumstances of the case. And that requires some

consideration both of the nature of the trial

Merritt 2 13/2/92

judge's role as discussed in The Crown v R, a New

South Wales decision which was considered by this

Court in Doney's case and also, I think, it will be

necessary for me to deal with Doney itself to

indicate why I say that that is not an adequate

response to the questions raised in relation to oral admissions as opposed to the facts of that

case.

BRENNAN J: So, it is not simply a case of a failure to give

a McKinney direction?

MR BASTEN:	No, it is not, Your Honour.
BRENNAN J:	No.  Very well, we will adjourn now until a

quarter past two.

AT 12.53 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

BRENNAN J: Yes, Mr Basten?

MR BASTEN:  Your Honours, may I come straight to the first

of the two points I enunciated before lunch,

namely, the question of the approach adopted in the

Court of Criminal Appeal? And the question which

the applicant says arises here is whether the court

did properly apply the principles which have been

stated by this Court in cases such as Morris and

Chidiac in relation to a case involving the dangers

which were identified in McKinney and Judge.

I should perhaps go straight to the judgment

of the Court of Criminal Appeal which appears at

page 48 of the appeal papers and I can take

Your Honours directly through to page 52 where the

court, having referred and quoted at some length

from the judgment in McKinney, towards the bottom

of the page at about u, notes:

The substantial question raised by the

grounds of appeal is whether this Court

should, because the confessions came from the

police officers involved in that investigation

and for present purposes are wholly

unsupported by any testimony of an independent

nature and are contested by the appellant,

declare that the verdict is unsafe and

unsatisfactory.

Merritt 13/2/92

They then set out a test which they derived from general terms, is the test which was applied in

Chidiac although His Honour the Chief Justice, at

the top of page 444 in Chidiac, 171 CLR, raises the

test somewhat differently.	He says the question
is:

Rather, it is for the court to determine

whether there is a significant possibility

that an innocent person has been convicted

because the evidence did not establish guilt

to the requisite standard of proof.

And thereafter refers to Davies and Cody which,

again, refers to a feature of the case raising a

substantial possibility 1at the jury may '.ave been

mistaken or misled.

The court then notes at page 53 that it has a

duty to make its own independent assessment of the

evidence. It refers to the Chief Justice's

judgment in Chidiac in that regard. And then it

states the test it is appliing at letter K:

That will require this Court to be conscious

of the dangers inherent in acting on
confessional evidence of the kind we are
concerned with here and to consider carefully
any matters indicating unreliability or lack

of credibility in the confession.

And that appears to be part of a two-limb test
because they then go on to discuss some matters

which are no direct consequence. They note in the

middle of page 54 what the direction was which was

given to the jury and I note that although it

preceded the judgment in McKinney it was, to a

large extent, in accordance with this Court's

judgment.

Then at the bottom of page 54V, they return to

the principle. Mr Justice Lee says:

I have examined the evidence of the

police in regard to the alleged confession and
do not see in it or in any of the other

evidence in the case circumstances or features

which tend to cast doubt upon the confession

not having been made and not being true.

In substance, he repeats that test on the next page

but he says on page 55G:

I am satisfied that the jury was sufficiently

directed ..... It was, however, for the jury, as

the body charged by law with the

Merritt 4 13/2/92

responsibility of determining guilt, to decide

the credibility of police witnesses and the

appellant, and their choice to accept the

Crown evidence cannot be disturbed here.

And then, if I may just complete the reference to

the relevant sections, further down that page at

letter P, His Honour repeats in substance the
statement, namely:

accused then that choice is final for, as

if the jury prefers the sworn testimony of the the

I have said, the decision of the jury on the

question of the credibility of the police and

of the appellant cannot be challenged here.

TOOHEY J:  Mr Basten, is it right to say that this case was

not run before the Court of Criminal Appeal as a case of misdirection or inadequate direction but only on the basis that the jury's verdict was said

to be unsafe or unsatisfactory?

MR BASTEN: In substance, that is so, Your Honour. There

were some minor points taken in relation to

directions, one of which is referred to at the end

of Their Honours' judgment but that was not, by
itself, I think - certainly is not the basis of any

challenge here.

TOOHEY J:  No. Thank you.

MR BASTEN:  The directions, in my submission, only become

relevant for this Court if it were to come to the

stage of assessing whether they form a context in

which unsafeness and unsatisfactoriness can be

seen. They must be taken into account in that
context I would say. They are not the basis of a

separate challenge.

At page SSS, His Honour returns to the test

that he had enunciated earlier and says:

I have not been able in the evidence in the case to see any fault or flaw or suspicious feature in the police testimoney, and,

accordingly, I do not consider that this Court

has any power to interfere in the jury's

verdict.

Now, what the applicant submits in relation to

that is that taken as a whole, and one must take

all these passages together to get a clear picture

of what His Honour did, His Honour has come

perilously close to the error which was identified

by the Chief Justice in Chidiac, and if I might

Merritt	13/2/92 just briefly refer to Chidiac's case. At page 446
to 447, the Chief Justice asked the question:

Did the Court of Criminal Appeal err in

principle?

And he says in the passage which goes from the

bottom of page 446:

If the passage which I have quoted from the judgment of the Court of Criminal Appeal were

to be viewed in isolation, I would be inclined
to the view that their Honours proceeded

according to an overly narrow view of their

jurisdiction. They seem to be saying that the

fundamental issues raised questions of

credibility on which the jury had the benefit

of instructions which were adequate and

favourable to the applicants.

And one needs to go back to pages 441 to 442 to see
what the direction was to which His Honour was

referring, and perhaps it is necessary to refer

briefly to the passage which begins just above the

bottom of the inset, page 441 point 9:

If ever there was a case in which the jury had

their attention well and truly directed

towards such problems of credibility, this is

it. The features of the Crown case which are

said to make the jury's verdict unsafe and

unsatisfactory all relate to the matter of the

credibility of the principal Crown witnesses.

That is a jury question -

and so on.

Once the jury decided, as they were entitled

to do, that they could place sufficient

reliance upon the evidence of Oti and Kwalu,

then there was an abundance of evidence of

guilt of the accused.

Now, my submission in relation to the present

case, and perhaps I - - -

BRENNAN J: Well that just simply means that in Chidiac's

case what His Honour was saying was that it is not

simply a question of whether the jury had an

adequate direction, it is a question of the Court

of Appeal assessing for itself the strength of the

evidence that was given.

MR BASTEN: His Honour is certainly saying that.

BRENNAN J: Is he saying any more?

Merritt 6 13/2/92

MR BASTEN: Well, perhaps in the context of the case

His Honour is saying that the Court might not have properly applied that test if that quotation fully

summarizes what Their Honours did in the case. I

think in the context of Chidiac His Honour did not

need to take the matter much further because there

was, on any view of it, other evidence which would

not have rendered the verdict unsafe.

BRENNAN J: Well, there is no appearance of that lacuna in

the Court of Criminal Appeal's judgment in this

case.

MR BASTEN: In my submission, there is in the sense that

what His Honour the Chief Judge in Common Law has

done is really to look for faults or flaws - and I

will come back to that if I may - and then say, "If

I can't identify any fault or flaw, then really the rest if credibility and there's nothing that this

court can say about that" - nothing that the Court

of Criminal Appeal can say about that. That is

what he is saying at page SSG.

The problem that I have, in my submission,

with that approach is, firstly, that it does not

adequately assess the material in the case against

the difficulties and dangers which were identified

in McKinney because the problem with this

testimony, police testimony of oral admissions, is

not that it is all inherently unreliable or has

that nature as the evidence, for example, in Morris

of the alcoholic might have had, the problem is

that some cases may involve concocted evidence.

The difficulty arises in attempting to distinguish

which do from which those which do not. In order

to undertake that test, one has to look more

closely at the evidence, in my submission, than

simply say that there are no flaws or suspicious

circumstances because the very nature of the task

is one in which the evidence is, in a sense,

flawed. It is flawed in that there is no

independent corroboration to which one can turn.

It is flawed in the sense that there is no

information provided to the police which they did

not already know, and so on. What His Honour would

have needed to have done, had he carried out that

task properly, in my submission, is firstly to note

the inconsistency between the dock statement in
which the denial of the interview as such was given

and compare that with the evidence of the police,

at least in broad terms, and note the other

incidental inconsistencies which arose from the

evidence as to what happened to the man when he was in the police station, and it is that task which is

not sufficiently carried out.

Merritt 7 13/2/92

Your Honours do not have, for the purpose of

this application, the benefit of that evidence in

the appeal papers but there is the record of

interview which is set out at pages 33 to 34 of the

book and one can see from that some significant

features which would suggest that the greatest care

would need to be taken with this evidence. Only a

small number of questions were asked; all were of a

leading nature with a possibility of the second
question at the top of page 34, and that perceives

a pretty bland sort of answer, and apart from the

first three questions, any further information is

simply really a denial or an ambiguous answer.

So that when one looks at the text of the

record of interview there are significant problems
with it. Needless to say, the police officers

involved were cross-examined in relation to their

statements and one would need to assess that.

What His Honour has done, as I understand it,

is to simply acknowledge that there are

difficulties with this sort of testimony and then
look for other flaws which have no bearing on those
particular questions because His Honour says,
"Well, we must of course be cautious for these

reasons." That, in my submission, is not the

correct approach because His Honour should have

specifically addressed the matters which were

raised in McKinley as the sort of dangers to which

his court was required to address itself in

applying the Chidiac test.

TOOHEY J:  It may be that His Honour posed the test for the

Court of Criminal Appeal unduly favourably,

although I do not know that anything turns on that.

If you look at the top of page 53, Mr Basten, in that passage that you read to us, it is that:

the Court must determine for itself whether on

evidence presented at a trial the jury ought

to have been satisfied -

and so on. I suppose, really, it is "the jury

ought not to have been satisfied", in other words,

if it was open to the jury to have been satisfied,

then that is really enough to meet the Morris'

test.

MR BASTEN:  Yes. I do not place too much weight on that,

Your Honour, as I was indicating by - - -

TOOHEY J: Well, no, I do not imagine you do but -

MR BASTEN:  But in this sense, Your Honour, because there

are different ways in which that test has been

formulated in the various judgments in Morris and

Merritt 8 13/2/92

Chidiac. It may be that the test is somewhat

tighter than that which the Chief Justice

formulated and the reference to the Davies and Cody

which is in a slightly different form. I do not

think much turns on the terminology but I doubt if,

given the various quotations I took the Court to a

moment ago, there is any reversal of the onus of

proof. It seems to me to be clear that the Court

is requiring to be satisfied positively that there

is an unsafe and unsatisfactory verdict. So, to

that extent, I would not concede that it is a test

which is too favourable when read in the context of

the judgment.

In my submission, in substance, it is

necessary for the Court of Appeal to find that the
jury could not convict on a disputed confession

alone, not simply because of that fact but because

it is necessary for that court to look at the

positive features of the case which could avoid the

real possibility that the jury must hold a

reasonable doubt and that is an exercise which the

court simply has not completed in terms of its
assertion that the matters are simply ones of

credibility in relation to the accused and the two

or three police witnesses.

Now, if I might take the matter the next

stage:  my second submission is that one can

understand that there are difficulties - without

conceding that the court could not have done more -

in the court dealing with an unsafe and

unsatisfactory argument where the matters do turn

so specifically on questions of the credibility of

a small number of witnesses and if that is correct

then the problem may well be to identify what is

the correct approach of the trial judge who has the

opportunity to see those witnesses and, in my

submission - - -

BRENNAN J: Just before you leave the functions of the Court

of Criminal Appeal, at the top of page 54

His Honour says that:

the decision of the High Court in McKinney and

Judge -

cannot -

be treated as being in the nature of an

invitation, or direction, or authority in this

Court to treat as unsafe and unsatisfactory

the verdicts of a jury given in a case -

et cetera. Now, it sounds to me as though you are

challenging that proposition, is that correct?

Merritt 13/2/92

MR BASTEN: That proposition is stated in the absolute

sense. I do not challenge it in that sense. I am

not suggesting that in every case where an oral

confession, disputed but uncorroborated, comes

before the court it must necessarily either be

rejected or the jury directed to acquit or the

court directed to quash a conviction. It seems to

me that one cannot make those absolute statements

given the fact that the credibility of particular

witnesses in particular cases will be critical. It

may be that there is something about the accused

which renders his testimony wholly implausible,
whether it be a dock statement or otherwise when he

disputes the confession. There may be something

about the presentation of the evidence, the nature
of the evidence in the Crown case which makes the

confession wholly plausible, even though it may not

be corroborated. I do not put it as high as that

and I do not think I would quibble with that

statement, Your Honour, because I do not read this

Court as putting it as high as that either.

BRENNAN J:  What you are saying then is that the factors

which are referred to in McKinney and Judge and in

Chidiac, when borne in mind in determining whether

the case is unsafe or unsatisfactory, should have

led the court in this instance to hold that it was

unsafe and unsatisfactory?

MR BASTEN: That is so, Your Honour. That is an argument

which I cannot fully establish on the basis of the

material in the book. My special leave application

is, I think, rather limited to the argument that

the way they approached the matter did not

comprehend those factors. To show that had it

comprehended them, a different result would have

been achieved, firstly, may not be entirely
necessary but cannot be done without looking at the

evidence. This Court does not have the transcript.

BRENNAN J:  No. What is there in the judgment which leads

to the conclusion that they did not have those

factors in contemplation?

MR BASTEN: Well, there are two aspects to it, Your Honour:

one is that they deal with those matters expressly

but in relation, in the middle of page 54, to the
warning given to the jury. They do not then
attempt the independent assessment at any stage

with reference to those factors, even in the most

general terms. I am not suggesting that they have

to write a detailed analysis of the evidence and

apply each of those problems as it may arise.

TOOHEY J:  Can you maintain that, Mr Basten, in the light of the last paragraph on page 54?

Merritt 10 13/2/92

MR BASTEN:  The last paragraph on page 54, in my submission,

supports it because - and this was the second point

I was going to turn to - it appears to look in the evidence for features which tend to cast doubt on

the confession and says there are none. Now,

either that is a rejection of the dangers which

McKinney notes - and I would not read it in the

that way although that would be wrong if it were

the case - or the Court is saying there are no

other features which would suggest that this

evidence is unreliable or might not have formed the

basis of a proper verdict. Those features which

might be sought are not identified but, more

importantly, in my submission, one does not need to

look for other features in order to be satisfied,

as it were, of a two-stage test.

BRENNAN J: If, as a matter of interpretation of what

His Honour said here on page 54, it were to be

concluded that the factors dealt with under the

warning passage must have been present to

His Honour's mind when dealing with the examination

of the evidence and the assessment of it, then your

argument does not have support, does it?

MR BASTEN:  Maybe I am reading in an ambiguity which is not

there.

BRENNAN J:  I am suggesting not so much the reading of a

possibly of an ambiguity, what I am suggesting is that

if, looking at that and the way in which it is

expressed, one comes to the conclusion that

His Honour must have had in mind the numbered

matters that appear in the antecedent paragraph,
then it is hard to see that, putting it at its
highest, the relevant factors were not taken into

account.

McHUGH J: But in addition - could I just add this - that at

page 54G, having referred to McKinney, His Honour

says:

This Court, as I have said, is also, in

determining whether a verdict is unsafe and

unsatisfactory, to be conscious of the context in which the testimony is to be considered and

of the dangers in that testimony.

MR BASTEN: Your Honour, I accept that. That is why I did

not apprehend that there was any doubt that those
are matters which the court was conscious of. But
in the light of that passage, if one goes down to

the final paragraph on the page, one asks what it might be in the evidence which would tend to cast doubt upon the confession not having been made and,

of course, one of the factors is that there were no

facts in the confession which were previously

Merritt 11 13/2/92

unknown to the police. I mean, one would have

expected, had that been one of the circumstances

taken into account, that the court would

acknowledge that as a concern and note that, by

itself, it might not, having been subject to a

direction, have caused doubt.

McHUGH J: Well, is that an accurate account? What about

the fact that the confession attributes an

admission that the accused was the middle person in

the photograph? I mean, that was an objective

factor which he denied in his statement from the

dock.

MR BASTEN: Well, there was no ev Jenee identifying the

accused with any of the men independently. One

simply cannot assess that fact one way or another,

in my submission. It is speculation. There is no

way that the court could have been asked to affirm

or otherwise that. I do not submit that it even

gives any verisimilitude to the alleged statement.

I understand the argument that Your Honours

are putting to me and I do not, for myself, doubt

that the court did take account of those various

factors. My question is not so much whether they

were conscious of the dangers but how they dealt

with that consciousness in considering the evidence

which was before them and what the court meant in

saying that there was no feature which tended to

cast doubt upon the confession not having been made

or not being true. There was, of course, the dock

statement. That presumably was taken into account

but on this approach to that passage was simply

disregarded for some reason which is not explained

because the dock statement was firmly to the

contrary of the evidence given by the police. So,

there was a dispute which was before the court.

McHUGH J: But when the whole case is looked at, it is only

another question of fact, is it not? It is not a

special leave case.

MR BASTEN: There are two questions, in my submission, which

do go to the special leave point. The first is

whether the court dealt properly with that

independent assessment of the evidence and -

McHUGH J: Well, that is not a special leave point, is it,

Mr Basten?

MR BASTEN:  In my submission, it is, Your Honour, and it is

for this reason - and this perhaps leads into my

second point but is logically independent of it -

the difficulty that the court faces in making an

independent assessment of evidence of, in

Merritt 12 13/2/92

substance, two witnesses, when the only question is

as to their credibility.

McHUGH J: Yes, but there has got to be something special

about the case which transcends the case. It seems

to have escaped, particularly the criminal bar, as
to what is required in a special leave application.

This Court is inundated with applications which are nothing more than cases which might be brought in

the Court of Criminal Appeal with some

respectability but which do not get anywhere near

raising a special leave point. I mean, these are

just questions of fact. If the Court of Criminal

Appeal erred, well, they may have erred, but it is

not a ground for special leave simply that there is

an arguable case of error on the court below.

There has to be something special about it.

MR BASTEN:  Yes. I was not seeking to put it on that

limited basis, Your Honour, and it may be that the

basis on which I am putting it is not acceptable,

but I am putting it on the basis that the approach

taken in conducting the independent assessment was

not the correct approach to be adopted and my

interpretation of what Their Honours were saying is

on the basis that it is limited in the way which is

inconsistent with Chidiac in that Their Honours

leave the questions of credibility as jury

questions. If they do that, that is a wrong

approach in principle and the point I was going to

make was that that is understandable in these cases

of oral confessions.

McHUGH J:  But it is not a wrong approach in principle. I

mean, it is just playing with words, is it not? It

is a wrong application of principle, and a wrong

application of principle does not raise a special

leave ground.

MR BASTEN:  Your Honour, the question which is raised by

saying it is a wrong application arises because, in

my submission, there are very significant

difficulties in applying the Chidiac and Morris

test to questions which involve assessments of

credibility of individual witnesses. The problems

which arise in these sort of cases are results of

there being no particular feature of the evidence

like the Morris feature in which one can say there

is something inherently unreliable about the

evidence of a confabulating alcoholic.

In McKinney, this Court acknowledged, I

think - or perhaps in Carr - that there is nothing inherently unreliable about the evidence of police officers, even in giving testimony of oral

confessions which may or may not be concocted, the

problem is a rather different one. The problem is

Merritt 13 13/2/92

the difficulty of working out whether this is the

bad apple or not.

TOOHEY J: But what does a court of criminal appeal do,

Mr Basten? I mean, it is very easy to set up a

ground of appeal before that court that the verdict

was unsafe or unsatisfactory. This ground appears

to be set up without necessarily being

particularized in any way. Now, the Court of

Criminal Appeal is required, as a result of Morris,

to make its own assessment of the evidence but it

is inevitable it is going to look for such things

as inconsistencies because it is they that are

going to point up the likelihood that there has

been some miscarriage of justice. But if in the

end the court is left with questions of

credibility, then how does it distill from that

sort of area a conclusion that the verdict was

unsafe or unsatisfactory?

MR BASTEN:  It may be extremely difficult for it to do it,

Your Honour and it may be that the test being

imposed upon it is one which is perhaps impossible

of fulfilment.

TOOHEY J:  It may not be. I mean, there may be a glaring

inconsistency which just calls out for correction

by the Court of Criminal Appeal.

McHUGH J: Ordinarily, I would have thought that he would

never be able to have a verdict set aside on the

ground it is unsafe and unsatisfactory when there

is a full confession to police officers unless

there is something in the confession, some

inconsistency or it was contradicted by some other

evidence in the case. But if it is word against

word, as in this case, how could a court of

criminal appeal say that the verdict is unsafe and

unsatisfactory?

MR BASTEN:  Your Honour, that may well be correct and if

that is correct then, in my submission, one needs

to ascertain those circumstances in which the trial

judge, who is in a better position to make that

assessment, should properly withdraw the case from

the jury because if nobody can make that

assessment, the trial judge is not allowed to make

that assessment and the Court of Criminal Appeal

cannot make it, then there is a very serious danger

of miscarriages occurring which are uncorrectable.

BRENNAN J: If that is so, it is because of the operation of

Doney.

MR BASTEN:  That may be so, Your Honour, and it was Doney to

which I was seeking to turn.

Merritt	14	13/2/92
BRENNAN J:	Of course, yes.	I mean, what you have

constructed seems to me to be a very interesting
piece of logical argument but at base your

proposition has to be that where an issue of unsafe

or unsatisfactory turns on credibility and the

evidence is of a confessional kind, a court of
criminal appeal cannot be satisfied that it is not

unsafe and unsatisfactory.

MR BASTEN:	Yes.
BRENNAN J:	Now, I do not think that anything in McKinney and Judge would support that view and, indeed, it
would be to transfer the responsibility for a
verdict from jury to Court of Criminal Appeal. It
seems inconsistent with basic notions of the
administration of criminal justice.

MR BASTEN: Or to the trial judge if

BRENNAN J: Well, if Doney is wrong.

MR BASTEN: Well, I am not suggesting that Doney is wrong.

What McKinney does, in my submission, is to firstly

provide a statement of the difficulties and then
say to the trial judge, "You should give a warning

in these cases to the jury". There may be a case

in which the trial judge would, himself, be

satisfied that the warning which was required by

McKinney could not effectively overcome the dangers and if that is the case then there would have to be

a reconsideration of whether or not the principle

which prevents a trial judge ever withdrawing a

case where there is some evidence is correct and,

in my submission, Doney does not embark on that

more refined consideration. The Crown v R did in

the New South Wales Court of Appeal and there was

some discussion of the Canadian Supreme Court case

where that distinction was drawn and within what
was called "the narrow view" by

Chief Justice Gleeson, he found that there was some

disparity in approach and it is that narrow view

which has been accepted in Doney. But there is

room, in my submission, for the argument within

Doney that it is nevertheless open to a trial judge

to make an assessment of whether or not the

McKinney-type warning is sufficient to overcome the dangers which he foresees and understands and can

assess in terms of the trial. While that is not a

matter which was discussed directly in Doney, which

dealt with a rather different circumstance, in my

submission, it is open and appropriate for this

Court to consider whether - - -

TOOHEY J: It is hard to imagine that that sort of situation

cannot be met by adequate direction, emphasizing -

over-emphasizing, if need be - the danger of

Merritt 15 13/2/92

accepting the confession in those particular
circumstances and that is why, in the end, a lot of
these cases must turn upon adequacy or correctness

of direction to the jury rather than upon unsafe or

unsatisfactory verdict.

MR BASTEN: In practice, I think that is so, Your Honour,

but it is partly because of the difficulty with

having the Court of Criminal Appeal assess what has

happened before the jury in such a case.

McHUGH J: But you seem to be proceeding on the basis that

you have some fundamental right to be able to

examine the evidence. The onus is on you to show

that the verdict of the jury is unsafe or

unsatisfactory. Now, if, in the Court of Criminal

Appeal, you are not able to do it, whether it be

because it is police evidence or evidence from some

archbishops, the fact is that the verdict is not

unsafe or unsatisfactory.	You just do not have a
case.

MR BASTEN:  The fact is that it may be the kind of matter

which is not readily dealt with in the Court of

Criminal Appeal. That was the proposition I was

accepting for the purpose of the argument I was

just putting.

McHUGH J:  But then you want to erect that into an argument

that then the trial judge should withdraw the

evidence.

MR BASTEN:  I wanted to see if there was a system which

consistently with law could avoid a miscarriage of

justice in such a case, Your Honour.

McHUGH J: But what is the miscarriage of justice?

MR BASTEN:	The significant possibility that an innocent person could have been convicted upon evidence on
which the jury was misled or mistaken.

McHUGH J: Well, he cannot deal with that proposition until

he has been convicted, and you want to withdraw the

evidence before he is convicted.

MR BASTEN:  In a narrow circumstance where the warning which

this Court considers essential is believed by the
trial judge not to adequately deal with the

problems he sees in the trial.

McHUGH J: If the trial judge should see it, then the Court

of Criminal Appeal should see it.

MR BASTEN: In my submission, no, because the trial judge,

unlike the Court of Criminal Appeal, has had that very opportunity to assess the credibility of the

Merritt 16 13/2/92

witnesses. He may have the imputed experience of

the judicial system to which Your Honour, I think, referred in Chidiac which the members of the jury do not have. I accept that the trial judge could give a direction which is so strong that the jury would feel compelled to comply with it but, in a

sense, that is simply ignoring the problem because

it is saying that the judge has that power and

authority to direct a jury without expressly saying

so and that seems to me an undesirable result.

Your Honours, I do not know that, unless there

are other points, I can take the matter very much

further.

McHUGH J: Yes, thank you, Mr Basten.

BRENNAN J: Just before you sit down, am I right in thinking

this, Mr Basten: leave Doney to one side for the

moment and let us assume that a trial judge could,

contrary to Doney, in a case where it appeared to

him that there was a tangible risk or perhaps a

probability that the McKinney warning that he would
be bound to give might not be sufficient to bring

home to the jury the true measure of the danger of

acting upon the particular piece of evidence for
some reason; let us assume that the judge could

then go on and give a further warning and perhaps

even a direction to the jury that they ought to

acquit; assuming that, where is there then any

reason to think that the system is not capable of

coping with a prospective injustice?

MR BASTEN:  It may be that in that circumstance,

Your Honour, the system has catered for it. The

question is whether - Your Honour says leaving

Doney aside and the New South Wales - - -

BRENNAN J: What I am suggesting is that Doney does not

prevent that happening.

MR BASTEN:  Does not prevent that, yes. There will

obviously be cases where that may not be effective

and I am trying to recall the case which came to

this Court where an acquittal had been directed and

the jury had convicted and this Court declined to grant special leave. I am afraid the name of the case escapes me at the moment.

BRENNAN J:  We have all had experiences of that sort of case, Mr Basten. It is sometimes humbling.

MR BASTEN: Yes. But that is, I suppose, one situation.

What Your Honour is really putting to me, I think,

though is that one is entitled to take a somewhat

more robust view of the directions that a trial

judge could give than would be accepted, at least

Merritt 17 13/2/92

in New South Wales, in the light of R's case.

Doney does not go into some of those refinements

but, in my submission, there is a difficulty in

giving quite such a robust direction as Your Honour

is suggesting and staying within the principles,of

perhaps Ras affirmed in Doney, but I accept that

in principle that would go a long way to resolving

the problem that I see.

BRENNAN J: Yes. If that is so, the problem lies, if it

lies anywhere, in the scope of the trial judge's
discretion rather than in the inflation of the

functions of the Court of Criminal Appeal.

MR BASTEN:  Yes.

McHUGH J: That is the whole problem, is it not, Mr Basten,

that the trial judge has no authority to deal with miscarriages of justice? That is conferred on the

Court of Criminal Appeal.

MR BASTEN:  I do not accept that entirely, Your Honour,

because the trial judge does have a significant

inherent power to prevent unfairness to the accused

and thereby prevent a miscarriage of justice coming

about where he can anticipate one. That is the way

the trial - - -

McHUGH J:  I do not know that you may not have put it too highly. I mean, strictly speaking, he can reject

evidence on the ground that it would unfairly

prejudice the accused.

MR BASTEN: Yes. Well, that is an example, I suppose. The

principle I had in mind was not, though, that the

trial judge would have any power either to reject a

verdict that had been given by the jury or to

refuse to enter a conviction on the basis of a

verdict. It is at the prior stage that, in my

submission, the trial judge's power to control the

trial is a power to prevent miscarriages of

justice.

BRENNAN J: Thank you, Mr Basten. We need not trouble you,

Mr Blanch.

This application challenges the adequacy of the consideration given by the Court of Criminal Appeal to the question whether the conviction is unsafe and unsatisfactory when the evidence

consisted chiefly of uncorroborated and challeged

confessional evidence.

The argument is that, though the jury has been

appropriately warned and has determined credibility

in favour of the Crown, the factors to which

reference is made in the majority judgment in

Merritt 18 13/2/92

McKinney and Judge, (1991) 171 CLR 468, has to be

borne in mind in deciding whether the verdict is

unsafe and unsatisfactory.

The reasons for judgment, as we read them, do

not suggest that those factors were not acutely

present to the mind of the Court of Criminal Appeal

and were not appropriately weighed in deciding

whether the verdict was unsafe or unsatisfactory.
That being so, there is no ground for doubting that

the Court of Criminal Appeal properly appreciated the breadth of its jurisdiction. We see no error

in that Court's reasons and, accordingly, special

leave will be refused.

Adjourn the Court until 9.30 tomorrow morning.

AT 2.58 PM THE MATTER WAS ADJOURNED SINE DIE

Merritt 19 13/2/92