Morton v The Queen

[2021] HCATrans 25

[2021] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D3 of 2020

B e t w e e n -

ROBERT MORTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 FEBRUARY 2021, AT 10.43 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC with MR A.E. ABAYASEKARA appears for the applicant.  (instructed by Northern Territory Legal Aid Commission)

MR M.W. NATHAN, SC with MR D.M. CASTOR appears for the respondent.  (instructed by Director of Public Prosecutions (NT))

BELL J:   Mr Odgers.

MR ODGERS:   Thank you, your Honour.  In 2019, in this Court’s decision in De Silva, the position was considered where there was a risk that a jury would reason that if evidence of an accused in his or her record of interview was not accepted, it should be put to one side and not taken into account when considering whether the prosecution had proved guilt beyond reasonable doubt. 

This Court accepted that if there was a real risk that a jury would reason in that way, a direction should be given that, even if the evidence was not positively believed, the evidence should still be taken into account if it might be correct.  That reflects the proposition that if evidence creates a reasonable possibility that the accused is not guilty, the accused must be given the benefit of that doubt.

We submit that in the present case there was a real risk – not removed by the general directions on the burden and standard of proof – of the jury being misled in this way by being told by the judge – at application book 25 – that it was a matter for them to determine what they accepted of the applicant’s account and what they did not accept.  Your Honours will see at application book 25, at line 20, the line:

It’s a matter for you to determine what you accept and what you don’t accept.

Then, about four lines down:

So you must decide for yourselves . . . was he telling you the truth or was he not –

Those directions were given in the context of a general direction, at page 12 – if I can just take you to page 12 of the application book.  At the bottom of the page there is a reference to:

the evidence of a witness and indeed this includes the record of interview of Mr Morton, you do not have to accept the whole of the evidence.  You can accept the whole of the evidence and you can reject the whole of the evidence.  But you may think that some of it is accurate and some of it is not accurate.  It really is a matter for you what you accept from the evidence of each of the individual witnesses.

Then, importantly, in the next paragraph, in the second sentence:

The mere fact that you do not accept parts of their evidence . . . means that you are not satisfied that that is what happened . . . and you are not prepared to rely upon it for whatever reason.

So, our submission is that those directions were erroneous in the light of De Silva but it overlaps – the submission overlaps with the question of general importance that we seek to have ventilated – whether there is some broader principle that applies in circumstances where the defence asserts the existence of some intermediate fact, such as intoxication, relied upon to support the existence of such a reasonable doubt.  It overlaps because the applicant had claimed, in his record of interview, that he was very intoxicated.  He used the language “blind drunk” at the time he assaulted his partner. 

In our submission, it cannot seriously be questioned that even if a jury does not accept the existence of the intermediate fact, does not, for example, accept that the accused was very intoxicated, as was the defence case, a reasonable possibility that he was should still be taken into account in deciding whether the offence has been proved beyond reasonable doubt. 

The argument we advance is that a trial judge should not direct a jury to decide the extent of intoxication, because that is just another way of directing them to determine whether they accept the defence evidence in that regard.  If they do not accept the defence evidence, the jury will decide that the accused was not very intoxicated.  This makes it inevitable that the jury will not take into account a reasonable possibility that he was very intoxicated when they consider whether the prosecution had proved guilt beyond reasonable doubt.

BELL J:   Mr Odgers, is this a contention that what is required in a case in which there is some evidence of intoxication bearing on the question of proof of intent, that something more is required than what I might describe as a Coleman direction?

MR ODGERS:   Your Honour, the problem arises where there is a dispute, not that there is just evidence of intoxication, but there is a dispute between the defence and the Crown as to, let us say, the level of intoxication, and where that dispute exists, we say that there is a very real danger that if a judge invites or directs the jury to decide that dispute, to decide the level of intoxication, that will necessarily infringe on the proper…..of the burden and standard of proof. 

So the issue is not one of substantive law relating to the law of intoxication.  It is rather how the burden and standard of proof properly applies where the defence asserts the existence of an intermediate fact such as he was very intoxicated and how a judge should direct a jury about how they should approach the resolution of that dispute between the defence and the Crown.

BELL J:   Mr Odgers, if one looks at the analysis of the Court of Appeal at application book 70, paragraph [46], their Honours noted that:

The most important message to be communicated to the jury . . . was that the prosecution had to prove beyond reasonable doubt that –

your client possessed the intention:

notwithstanding his intoxication.

Their Honours referred to passages in the directions which they considered did serve to achieve that end.  Now, one must always look at a summing‑up in context, appreciating that his Honour did not give a direction of the kind that Justice Hunt in Coleman recommended.  Nonetheless, the Court of Appeal concluded that it was made plain to the jury that the issue for them was whether the Crown had failed to establish the intent in the context of evidence of intoxication.

MR ODGERS:   Your Honour, we did not complain about that.  That was not an issue in the appeal.  We accepted that the judge correctly directed the jury that the question was – the end of the final question was, does the intoxication create a reasonable doubt regarding intention?  The problem was that there was a preliminary question which the judge directed on which we say fatally undermined the operation of the burden and standard of proof because the judge repeatedly - in the directions, repeatedly directed the jury – this is at pages – application book 17 and 18, to determine the extent of the intoxication as a preliminary step before they then considered the ultimate question, the Coleman question, whether or not the intoxication caused them to have a reasonable doubt as to the formation of the intention. 

So that by doing that, by directing them to determine the extent of the intoxication where you had conflicting defence and prosecution cases, you thereby failed to direct them that if it was a reasonable possibility that he was as intoxicated as the defence contended, they should take that into account when they applied what I will call the Coleman test. 

The point, your Honour, is that the focus of the appeal was not on that part of Coleman but on the proposition in Coleman and in the High Court dicta that we referred the Court to, to the direction that is given is not to determine the level of intoxication.  Rather you take into account all the evidence relating to the intoxication when you decide whether or not the Crown has proved intention. 

Where there is this conflict between the Crown and the defence it is, we say, fundamentally erroneous to get the jury – to direct the jury to determine the level and then go on to apply the burden and standard of proof to that level of intoxication that they have determined it to be. 

Your Honours, at 17 and 18 of the application book there are repeated examples - I am not going to read them all out, your Honour, but repeated examples of the judge directing the jury to determine the extent of the applicant’s intoxication and then to consider, having made that determination, whether intention had been proved.  That is the nub of the complaint and, with respect, the Court of Criminal Appeal’s – what fell from the court in the part of the judgment you have referred me to does not address that question at all.

The reasons that the court gave for rejecting the argument that was advanced are found at application book 68, your Honour, in paragraph [42].  Essentially, two reasons were given for rejecting the argument.  The first, was that the court did:

not discern any encouragement to the jury to engage in a two‑stage approach.

My submission is that a fair reading of what is said at 17 and 18 conveyed – very much clearly conveyed a two‑stage approach, but at the very least it permitted a two‑stage approach.  The jury were never directed as to what they should do if they considered it a reasonable possibility that the applicant was very intoxicated as the defence contended.

Can I contrast that with a direction given in a Queensland case, which the respondents have provided to your Honours?  I believe it is the case of R v Hayes [2008] QCA 371.

BELL J:   Yes. 

MR ODGERS:   In paragraph [51], your Honours, you will see the direction that the judge gave in that case – in Queensland in 2008 about intoxication – and in the third paragraph of [51], the judge says about intoxication:

If you exclude it as a reasonable possibility that the accused was affected by amphetamine at the time . . . if you exclude that possibility you don’t really need to consider intoxication further.

Then, about 10 lines down – and this is where they have not excluded it as a reasonable possibility:

in deciding whether you find that that intention did exist in fact you have to consider the evidence of consumption of drugs.

So, that is a direction which makes it very clear to the jury that if you have not excluded it as a reasonable possibility, you take it into account in deciding whether or not what I will call the Coleman question is answered, that is, has the Crown proved intention beyond reasonable doubt.

No direction of that sort was given in this case.  Instead the jury is told to determine the issue which essentially means do we accept the defence evidence, do we accept the prosecution evidence?  If we do not accept the defence evidence that means we proceed on the basis that he was not very intoxicated.  You then use that finding to consider the ultimate question. 

STEWARD J:   Mr Odgers, could I ask you a question about paragraph [42] of the Court of Criminal Appeal.  There is a second part to that paragraph.

MR ODGERS:   I was coming to that straight away, your Honour.

STEWARD J:   All right.  Well then you proceed.

MR ODGERS:   All right.  The second reason that the court gave for rejecting the argument, that is really the nub of this application, was that an acceptance of the Crown’s argument that if the jury was simply directed to consider whether the evidence regarding intoxication raised a reasonable doubt as to intention, that is, not directing them to decide the level of intoxication, but consider the evidence as a whole, the jury would probably come to their own view as to the level of intoxication so there was no harm from the direction that was given.

Well, with respect, that analysis just cannot be accepted.  An erroneous direction to a jury does not cease to be harmful because there is a risk that even with a correct direction the jury will proceed contrary to principle.  If anything, the existence of such a risk may require explicit directions to ensure the jury does not misunderstand how they should proceed.

By explicit directions, I mean a modified Liberato direction focusing on what they should do if there is a reasonable possibility that he was very intoxicated, the kind of direction that I have just drawn your Honours’ attention to in that Queensland case in 2008.  So that would be an explicit direction designed to prevent the risk.

But the existence of a risk, if you do not give an erroneous direction, cannot, with respect, somehow have the effect that we do not worry about an erroneous direction which encourages a jury to engage in incorrect reasoning inconsistent with the burden and standard of proof.

BELL J:   The direction, Mr Odgers, to which the Court of Appeal refers, again in paragraph [46], at the conclusion of the paragraph when the judge invited the jury to consider whether the Crown had established that your client had the necessary intent, even though the jury found that he was intoxicated, to whatever extent they might find, comes close to a direction to take into account the state of intoxication in determining whether the Crown had discharged its burden of proof.

MR ODGERS:   Your Honour, with great respect, I repeat my point.

BELL J:   Yes.

MR ODGERS:   The jury is being invited to determine the level of intoxication and then determine whether or not that causes them to have a reasonable doubt as to guilt.  It is the first step which is the problem.  It is determining the level of intoxication which is inconsistent with the principles that really come out of Liberato and De Silva and which I have respectfully submitted apply to the determination of any intermediate factor defence relies upon where there is a dispute. 

Where there is an intermediate fact relied upon by the defence it is wrong to tell the jury to determine whether that fact existed or not because that undermines the operation of the standard of proof.  If there is a reasonable possibility the fact existed, if it is a reasonable possibility that he was, as the defence claimed, extremely intoxicated, that has to be taken into account and the problem here was that the jury were misled as to that – that it is not a two‑stage process and that the burden of the standard of proof has application at the first stage as well as the second stage. 

In this case, really the central issue was, was he so intoxicated that the jury had a doubt as to intention.  If the jury had said, well, we do not think he was very intoxicated, that was the end of it.  It did not matter about the ultimate burden of proof because they would be considering the question of whether or not there had been proof of guilt in the context of a situation where they were proceeding on the basis he was not very

intoxicated at all.  That would have been the end of it.  So, it would have resolved - it would have led inevitably to his conviction on an erroneous basis.  I have tried to make that point as clear as I can. 

Your Honours, I will finish in this way.  We say that this case raises an important question regarding proper directions with respect to factual issues raised by the defence in a criminal trial including intoxication but it applies to other factual issues that might be raised by the defence. 

I will give you one example, your Honours.  Evidence of good character is often relied on by the defence in criminal trials to raise a reasonable doubt as to guilt.  Sometimes the Crown disputes the existence of good character and there is evidence to the contrary.  In New South Wales judges are directed - and the Bench book advises that they should be directed to determine whether or not the accused is a person of a good character and if you are not satisfied that he or she is you put the evidence out of your mind. 

But that again demonstrates the problem.  If they thought it was reasonably possible that he was a person of good character that should be taken into account in deciding whether or not there was a reasonable doubt as to guilt.

BELL J:   I think we have the point, Mr Odgers.

MR ODGERS:   Yes, thank you, your Honour.  My submission is there is conflict in Bench book directions about intoxication around Australia and your Honours are aware of that.  There is High Court dicta which we say supports our position.  We say there is a real question of general importance raised by this application.  May it please the Court.

BELL J:   Thank you, Mr Odgers.  We do not need to hear from you, Mr Nathan.

In our view, this application is not a suitable vehicle in which to consider the point of general principle that counsel has developed on the hearing of the application.  We consider there are insufficient prospects that an appeal would succeed to warrant the grant of special leave.  The application is dismissed.

The Court will now adjourn briefly in order to reconstitute. 

AT 11.04 AM THE MATTER WAS CONCLUDED