Neilan v The Queen

[1991] HCATrans 137

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M16 of 1991

B e t w e e n -

MARK CAMPBELL NEILAN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

DEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 6 JUNE 1991, AT 3.12 PM

Copyright in the High Court of Australia

Neilan 1 6/6/91

MR R.K. KENT, QC: If the Court pleases, I appear with my

learned friend, MR W.H. MORGAN-PAYLER, on behalf of

the applicant. (instructed by Kenna Croxford & Co)

MR B.D. BONGIORNO, QC: In this matter I appear with my

learned friend, MR W.R. RAY, for the Crown.

(instructed by the Director of Public Prosecutions

for Victoria)

MASON CJ: Yes, Mr Kent.

MR KENT:  If the Court pleases, grounds 1 and 2 of the

application for special leave in this matter

concern the important matters of the onus of proof

and the standard of proof in criminal cases. We refer the Court to the outline of submissions on behalf of the applicant filed in this matter and if

we might say this in general about those two

grounds: in the judgment of the Court of Criminal

Appeal in respect of both aspects of the learned

trial judge's charge which were challenged in that

court, the court made comment to the effect that

the expressions used in charging the jury were

either undesirable or unsatisfactory or words to

that effect. However, the court ultimately

determined that they were not errors of law such as

to vitiate the trial.

It is our submission that a specific error and

a specific matter that gives rise to the grant of

special leave to appeal arises in respect of

ground 2, that is the ground dealing with the

standard of proof. That, we submit, is

demonstrated by what is, in fact, we submit, a

conflict between the Court of Criminal Appeal in

Victoria and the Court of Criminal Appeal in South

Australia; the relevant case in South Australia

being Pahuja v Reg, (1987) 49 SASR 191.

Before we come to deal with that, if we could

was said by the learned trial judge in his charge,	go to the question of what it was, in effect, that
in this matter. We submit that the learned trial
judge did what the Court of Criminal Appeal in South Australia said should not be done and that is
that he divided the question of reasonableness and
doubt in that he used expressions such as "Members
of the jury, if you have a doubt then you must go on and consider whether or not they are reasonable."

Those matters are referred to in the charge at

pages 2704, 2710 and 2711 and 2718 of the charge.

We submit that those matters were, in fact,

acknowledged by the Court of Criminal Appeal or

interpreted in a way that we would submit is

inconsistent with decisions of this Court and,

Neilan 2 6/6/91

indeed, with the Court of Criminal Appeal in South

Australia.

If we can go from there to what it was that

the Court of Criminal Appeal said about this matter in the application before it, we submit, of course,

that it follows from our submissions that the

approach of the Court of Criminal Appeal in Pahuja

in South Australia was, in fact, correct.

If we could refer the Court - unfortunately the page numbers are difficult to follow - to what

is page 54 of the judgment; page 89, my learned

friend, Mr Bongiorno, advises. The court, in its

judgment, pointed out that there were, in Pahuja's
case, matters of the direction of the learned trial
judge there that were distinct from the matters
complained of in this case and they were

expressions to the effect of saying to the jury or

using the terms, "moral certainty" or "being sure"

and expressions of that nature. And the Court of

Criminal Appeal, it is our submission, erred in

considering that in Pahuja, where Pahuja was
applying Green, a decision of this Court, that

Pahuja turned on those other expressions, at least

in part and did not relate to the questions of the

direction that amounted to the division of the

expression "reasonableness and doubt".

At page 89, as it is of the appeal book,

and 54 of the judgment, it becomes apparent as to
how, we submit, the court went into error. Towards

the top of the page, in the first paragraph on that

page, the judgment reads:

It was held by King, CJ and Johnston, J that

the directions as a whole were erroneous.

Cox J dissented.

Well, in a sense, that is correct, that the

Honourable Mr Justice Cox did not agree that the

earlier expressions in the main body of the charge,

as opposed to the redirection in that case - the

Honourable Mr Justice Cox drew a distinction

plainly between the main body of the directions

given by the trial judge and the redirection which

he gave. But it is our submission that, in fact,

the ratio, correctly understood, of Pahuja is that

it was the redirection that was erroneous and gave

rise to the quashing of the conviction rather than

the earlier comments that were made in the main

body of the charge.

Effectively, we submit, that what the Court of Criminal Appeal did was to say, "Well, that was not

a matter that vitiated the trial but it was that

and perhaps in combination with the earlier matters

Neilan 6/6/91

in Pahuja that vitiated the trial." That is an

error and does not follow this Court in Thomas, to

which the Court of Criminal Appeal referred, and

Green.

We submit that when one goes then to page 55

of the judgment, page 90 of the appeal book, the

court said this, in the second paragraph of the

text:

As Cox, J observed in his dissenting

judgment, it cannot be the law that a

reasonable doubt is any doubt which a jury or

a juror is prepared to entertain at any stage

of the deliberations.

And then referred to what the learned judge said at

page 210 of Pahuja. If what His Honour had to say

had stopped then, then what it was that the Court

of Criminal Appeal said about it was probably

correct but, in fact, an examination of Pahuja

reveals that His Honour went on and, in fact, at

page 212 of the judgment in Pahuja dealt with the

question of the redirection which contained the

passages which we submit are of the same nature of

the passages of the charge of the learned trial

judge in this matter that are complained of.

At page 212 in the judgment of His Honour

Mr Justice Cox, he referred to Wilson and said:

The faulty direction as to the standard of

proof was held to vitiate the convictions. If

it were not for Wilson - and the decision was

followed by another Full Court in R v Dam Thi

Kim Chi (1986) 43 SASR 422 - I would hold that

the error in the learned judge's redirection

was venial and could not possibly have caused

a substantial miscarriage of justice. The

offending words were unnecessary and

undesirable but they were simply making

explicit what any perceptive juror would have

realised was necessarily conveyed in the test

"beyond reasonable doubt", anyway, and could

not have caused any confusion. However, the

condemnation of the impermissible advice as to

the jury's process of reasoning played an

important part in the majority decision in

Wilson and must be regarded as a part of the

ratio decidendi of that case. The court,

basing itself on Green took a strong view

about it. I think it likely that it would

have set aside the convictions for that reason

alone.	The decision in Wilson is binding, of
course, on this Court.	I am obliged to hold,

therefore, that the learned trial judge's

redirection on the standard of proof contained

Neilan 4 6/6/91

an appealable error and that, as a result, the

verdict must be set aside.

We submit that that is a proper determination of the issue and that, indeed, we submit that

Mr Justice Johnston in that case referred to essentially was relying upon the redirection which

contained the words that are similar - we submit

identical for all practical purposes - with the

trial judge's charge in this matter.

Accordingly, the Court of Criminal Appeal in Victoria was, we submit, acting upon the basis that

the ratio in Pahuja was different from what it is

and establishes by this judgment a precedent which

is inconsistent with Pahuja and, therefore, we

submit, is inconsistent with the earlier judgments

of this Court. And, accordingly, it is a matter appropriate for the granting of special leave so

that this matter can be fully argued and

determined.

We referred earlier in our submissions to

comment as to the the undesirability of seeking to

explain matters as to the onus of proof and in matters that might be said to be inappropriate

directions as to the onus and standard of proof.

At page 57 of the judgment, 92 of the appeal book,

the Court of Criminal Appeal said:

The present case is yet another

illustration of the undesirability, in general at all events, of seeking to explain to a jury

what is meant by the phrase "beyond reasonable

doubt" except by way of contrasting it with

the standard of proof in civil proceedings. It is unfortunate that the observations now

complained of were made by the learned judge.

The court has recognized, we submit, that the way

in which the jury was charged as to this vital

aspect of the standard of proof was not altogether

appropriate but we would submit that it should go

further than that and that in dealing with it in

this way the Court of Criminal Appeal is none the

less saying that the direction that that court is

heading is away from the strict requirement that as a matter of principle should apply, and that should

result in, we submit, as it would have had this

case occurred in South Australia, in the setting

aside of this verdict.

BRENNAN J:  Was the correct principle expressed by the court

in the last sentence on that page? That is:

But we do not think that in the present case -

Neilan	6/6/91
MR KENT:	We would submit that it must go further than that,

Your Honour. The courts must be robust in seeing

that this very important principle is not watered

down in any way.

BRENNAN J: Just attend to my question.

MR KENT:  I am, Your Honour, with respect.

BRENNAN J: Is the principle correctly stated there?

MR KENT:	We would say no, Your Honour.
BRENNAN J:	Where does the error lie?
MR KENT:	The error lies in this, that that is not a

statement of principle, we submit.

BRENNAN J: What is the principle?

MR KENT:  The principle is that the jury must be told in

plain and unequivocal terms that the standard of
proof is proof beyond reasonable doubt and no

further attempt should be made to explain that and

that they should not be invited, no matter what

else is said, to analyse their reasoning process,

as this Court has said in Wilson and as supported

in Green and Pahuja.

BRENNAN J:  But is that not what is said:

that they should consider whether the Crown

had proved guilt beyond reasonable doubt.

MR KENT:  Yes, they have, indeed, Your Honour, but what we

submit is that it is very well to say that as the

principle but what happened here is that that was

not done.

BRENNAN J: Then your argument is not as to the principle.

Your argument is as to the application in the

circumstances of this case?

MR KENT: With respect, no, Your Honour. What we submit is

that when one extracts what was said to the jury in
this case that it becomes, as a matter of

principle, permissible by virtue of this judgment

to direct the jury in the way that the learned

trial judge did and we would submit that that is

plainly at odds with the Court of Criminal Appeal

in South Australia and at odds with the principle

enunciated by this Court.

We submit that one must look at the expression of principle expressed in this case and look at it

in the context of the direction that was given and

it is, while saying it was unnecessa·ry or

Neilan 6 6/6/91

undesirable, none the less saying, in effect, "If

that continues to happen in this State that here is
a precedent that says that it will not be
interfered with provided as well something else is
said."

So that we would submit that that is not good enough and that one must avoid going down a path

that suggests an approach that this Court has said

is impermissible and it cannot be rescued by

simply, at a different time in the course of the

charge, addressing the matter in some other way.

And, accordingly, the fundamental principle is
watered down and altered, in fact, in this case.

If it is to say that it is good enough as long as

you get it right once or, perhaps, twice, then
forever and a day one will be able to say, "Well,

by the time the jury went out they would have

understood." It is simple and it is easy, we would

submit, for the learned trial judge to avoid using

the expressions which he did and to charge strictly in accordance - or more strictly, because we do not

suggest that this just hinges on any particular

formula of words but that what it must not do is at

any stage, we submit, invite the jury to embark

upon an exercise which is inappropriate.

That it is inappropriate to do that is

referred to in a number of the judgments of this

Court and of other courts. In a sense, perhaps,

encapsulated by expressions of saying that if the

jury is instructed that you must be satisfied

beyond reasonable doubt before convicting then if,

having applied that - - -

MASON CJ:  Mr Kent, your point can be encapsulated, cannot

it, by looking at the passage on page 88?

MR KENT:  Could Your Honour assist me with the judgment page

number as well?

MASON CJ: Yes, 53.

MR KENT: Thank you, I am obliged, Your Honour. Is

Your Honour referring to the passage of the charge?

MASON CJ:  No, before that, commencing on line 3:

It was that the judge on more than one

occasion told the jury that "beyond reasonable

doubt" meant proof beyond a doubt which they,

as a collective unit, considered reasonable.

This meant, it was submitted, that the jury

were told that if they had a doubt at the end

of their deliberations then they should
analyse that doubt to see whether it was a

reasonable one.

Neilan 7 6/6/91

And then there is a passage quoted.

MR KENT:	Yes, Your Honour.
MASON CJ:	Now, that is your case at its highest?
MR KENT>:	It is, Your Honour, yes, but it is not the only time that an expression like that was used.

MASON CJ:  No, I am not suggesting it was. Now, is that

inconsistent with what was said in Green's case?

MR KENT:	Yes, we submit that it is.
MASON CJ:	Now, would you point out to me the passage in the

judgment in Green's case with which an instruction

in those terms is inconsistent?

MR KENT:  Your Honour, we do not say that there is a

specific instruction on those terms. Your Honour,

the matter is dealt with at page 32 and going on to

page 33 but what I am just trying to do is to, in

addition to that - yes, the impugned charge is

referred to at page 30 of the judgment in that

case. In this case the charge said - I am reading

from page 30:

The answer is that you must be satisfied beyond reasonable doubt, and that is a

time honoured phrase and is usually thought to

do very good work in seeing that nobody is

convicted of a serious crime unless the court

that tries him is satisfied of his guilt

beyond reasonable doubt? And you may say,

"Well, how do I know when I have got to a

stage of being satisfied about something

beyond reasonable doubt?'

MASON CJ:  What about the passage at the foot of 32, going over to 33?

MR KENT:  Yes, I agree that, with respect, Your Honour, but

I was just endeavouring to relate it to the actual

charge that was impugned in that case. So that at

the bottom of page 32, in the judgment of the

Court, it said:

In the second place, the direction was in

our opinion fundamentally erroneous.	A
reasonable doubt is a doubt which the
particular jury entertain in the

circumstances. Jurymen themselves set the

standard of what is reasonable in the

circumstances. It is that ability which is

attributed to them which is one of the virtues

of our mode of trial: to their task of

Neilan 8 6/6/91

deciding facts they bring to bear their

experience and judgment.

MASON CJ:  The passage quoted on page 88, is that

inconsistent with that part of the judgment in

Green's case?

MR KENT:  Yes, we submit that it is.

MASON CJ: In what respect?

MR KENT:  In the respect that they are being told that their

process must be that having deliberated and found a

doubt, that they must then examine that in a

specific manner to determine whether or not it is

reasonable.	So that to simply ask them to
inquire - - -

MASON CJ:  Mr Kent, perhaps I do not understand language

very well, but my impression is that the passage

quoted on page 88 is very close to the expression

found at the bottom of 32 and the top of 33.

MR KENT:  The expression at pages 32 and 33 is not

purporting to be the terms of direction but

explaining the principle.

MASON CJ:  No, but it is stating some propositions, a

reasonable doubt is a doubt which the particular

jury entertains in the circumstances.

MR KENT:	Yes, Your Honour.
MASON CJ:	Now, is that not exactly what the trial judge was

telling this jury?

MR KENT:  We submit that that is not what - the trial judge

in part has told the jury that but we would submit

that this judgment in Green is not saying, "That is

what the jury should be told.", but that what the judgment is saying, that they should be directed	without any further assistance and that what this	explains is how that process is achieved, how the
result will be, hopefully, achieved by a jury that
they will not entertain the doubt unless it is reasonable.

MASON CJ:  Now, what direction was sought by counsel at the

trial in relation to this direction?	Was any
exception taken to it?

MR KENT:	Yes, there was, Your Honour.
MASON CJ:	What was the exception taken?

MR KENT: It is referred to, in fact, in the judgment - I

was going to the transcript of the charge but - - -

Neilan 9 6/6/91

MR BONGIORNO:	93.
MASON CJ:	93?

MR KENT:  Page 93 of the appeal book. In fact it seems it

says - as my learned friend points out, that says:

It is not without significance that the learned and experienced senior counsel who

appeared for the applicant on his trial, while

taking many detailed exceptions and in

particular taking exceptions to that part of

the charge which dealt with the burden and

standard of proof, made no criticism of the

charge such as that which is now being

considered.

I have not referred back to that - it does appear

to be relating to that ground. I was under the

impression that, in fact, in the exceptions there

was an exception but I would need to be able to

check that, if the Court pleases.

DEANE J:  The exception was that in talking about lies and

so on, the trial judge may have reversed the onus

of proof.

MR KENT:  Yes, there certainly was an exception in respect

of the first ground in respect of the onus of proof
but it was my understanding that indeed this

question was canvassed in exceptions.

MASON CJ:  Mr Kent, you should have checked this before.

MR KENT:  Yes, Your Honour, I do apologize. A brief reply

to the exceptions as taken by the defence and

referred to at page 2907 of the charge, where

Mr Guest refers to - he refers in these terms:

Your Honour, in so far as the onus and

standards are concerned it is our submission

burden of proof, that it was upon the Crown	that many times you reminded the jury of the
and the accused had nothing to prove.

And he went on to say that they were adequately -

in his reply to the exceptions.

MASON CJ:	Is there any reason to believe that the Court of Criminal Appeal are wrong in what they say on this?
MR KENT:	Only that it is my impression from my reading of

the charge that indeed, the exception - from
reading of the exception, it was taken. It may
well be that I have misconstrued that as a basis of

reading the reply.

Neilan 10 6/6/91

MASON CJ:  Can I interrupt you and ask Mr Bongiorno if he

can direct us to anything on this?

MR KENT: If the Court pleases.

MR BONGIORNO:  I cannot, Your Honour, I have not looked at

the exceptions that were taken. I accepted the

passage at the top of page 58 as being - 98 of the

charge. I do not have the relevant passage of

transcript here.

MASON CJ: Yes, thank you.

MR BONGIORNO:	No, I am instructed that in the area dealing generally with this topic it was not specifically
taken as an exception.
MASON CJ:	Mr Kent, I think I should make it plain that when

in an application for special leave a challenge is

being made to the correctness or adequacy of the

direction given by a trial judge this Court expects

counsel immediately to be able to refer to the

Court to any exception that was taken at the trial

in relation to that matter.

MR KENT:  We accept that unreservedly, Your Honour. If we

could move - Your Honour, we would simply say this

in respect of that matter: that if, in fact, this

Court was of a view that the direction was a

fundamental error, then the fact that an exception

was not taken is not fatal to this application.

MASON CJ: Yes, but there is a world of difference between a

fundamental error and something that is not a

fundamental error.

MR KENT:  We agree with that, with respect, if the Court

pleases but we would submit that none the less that

it is fundamental and that it is appropriate that

in this State that juries are directed in

accordance with what we submit is the approach

taken in Pahuja.

If we might return to ground 1, what we say in

respect of that is that it really is a question of
whether or not the expressions which again were

criticized by the Court of Criminal Appeal in

respect of that ground indicate that the court in

fact is not dealing appropriately with the question

of the onus of proof.

At page 49 of the judgment of the Court of

Criminal Appeal the court indicated that because of

the issues in the case and said in these terms:

This is the consideration which presented

unusual problems for the trial judge and, in

Neilan 11 6/6/91

particular in connexion with the onus of

proof.

And they refer to the commencement of His Honour's

charge at page 50 of the judgment:

His Honour's charge began:	" .... the question
for you can be posed in five words.	Did
Neilan kill his wife?"

His Honour posed the same question more than once

in the course of the charge. In one sense that was

undoubtedly the question for it was with the murder of his wife that the applicant was charged but in a case which presented the difficulties to which we

have referred the posing of the question that way

might have been better avoided.

There are other references and we do not seek

to take the Court to them in detail at this time.

What we would submit is that one has in combination

in both grounds 1 and 2 a clear indication from the

Court of Criminal Appeal that extraneous and unnecessary expressions were used which could

divert a jury from its proper task. And what we

submit is that when that combination occurs it is

appropriate for this Court to consider the

principle of whether or not on such vital matters

that a verdict should be allowed to stand. And we

submit that that is a matter that is appropriate

for the grant of special leave. But we would

submit that it does not bear of any further

discussion.

If we can move·to ground 3: simply put, it is

put as is put in the outline of submissions. We

would submit that whilst it is true to say that

motive is not of course necessary to be proved by

the Crown, it was inappropriate for the learned trial judge in this case, at page 2761 of his charge, to refer to motive telling the jury it was	not a matter for them and that the whys and ifs of	the case were for the learned trial judge in the
event of there being a conviction.

That does two things, we would submit. It

removes from the jury the consideration and the

proper consideration, we would submit, of the
question of the absence of motive and it indicates

by inference that there may well be motive which

can be determined at a later time but not by the

jury. It is a matter of whether or not those words

are capable of that construction and if they are,

we would submit that it is therefore inappropriate

for a jury to be directed in that way and that it

is appropriate and proper that as a matter of

principle juries should not be directed in that way

Neilan 12 6/6/91

as to motive where there is no evidence of motive

and where - as was contended before the Court of

Criminal Appeal in this case - in fact, the

assertion was that there was evidence which proved

there was no motive.

That is perhaps an interesting philosophical question as to whether or not there can be evidence

which proves there was no motive. But what we

submit is that perhaps without going that far, the

evidence was such that it would be open to the jury

to consider that there was no motive established on

the evidence and they may be satisfied to say, "In
fact, there was none but a charge in those terms

may well have diverted them from that course and it

is wrong in principle.".

The exception was taken to that and that is

commencing at page 2871 of the transcript following

the charge. What we submit is the principle that

it is inappropriate to direct a jury in a way where

there is no evidence of motive to suggest that

motive is, in effect, not relevant to their

considerations in any form, that there is no

authoritative statement in respect of that and that
it is therefore a proper matter for special leave

to appeal.

BRENNAN J:  What do you say about the observations of the

Court of Criminal Appeal at pages 100 and 101 of

the appeal book where they recite a passage of His

Honour's charge to the jury at the beginning of his

summary?

MR KENT:  What His Honour said in the course of his charge

when dealing with the defence submissions was that

the defence had submitted that the absence of

motive was an important factor. What we would

submit is the error is that the learned trial

judge, dealing with the matter in the way he did in

dealing with matters of law, was saying something

that was contrary to that and when he summarized

the arguments of the defence he was saying, "Well,
they're the arguments of the defence.", but was not

giving them the authority of what we would submit,

in the circumstances, was an appropriate direction

from the bench that it was appropriate for the jury

to so consider these matters and that whilst he

refers to them, he refers to them only as the

argument - refers to motive in that sense, he

refers to it only as the argument of counsel.

We would submit that perhaps an analogy with

this would be the view that is taken in respect of,
for example, a warning by a trial judge in respect

of the problems inherent in identification and that

it is not simply enough for the trial judge to

Neilan 13 6/6/91

leave the matter go to the jury as being the
arguments of counsel but that it is the experience
of the law that there are dangers in that regard.

We are not saying that as a matter of principle in

each case where there is an absence of motive that

a trial judge is obliged to direct a jury that

there is no motive and that it is a matter that

they should weigh in the scale.

What we submit happened here was that they

were deflected from that by what it was that the

learned trial judge said and that in saying that it

was a matter for him after conviction was likely to

distract them in a significant way from their

proper approach to this task. The effect of it was

that it was in fact withdrawn from the jury as a

consideration although it was referred to as an

argument of counsel. But as to the directions of

law it was withdrawn.

The final ground relates to the question of the observations made in the Court of Criminal

Appeal as to the effect of the right to silence.

We would submit that as a - I think I have gone

over ground 4. I apologize. The question of the

view.	The judgment at page 80 refers to this
matter.

We submit that there is a question proper for

the consideration of this Court by way of special
leave in respect of the problems relating to views.

If we might refer the Court to Reg v Hunter.

MASON CJ:  What is Hunter going to establish? What are you

drawing from Hunter?

MR KENT:  What we are drawing from Hunter, Your Honour, is

that there is a view that it is proper that no

matter what the purpose of a view is that it is
appropriate that it be under the supervision of the

Court and that whilst it may, in a sense, be said

to be a departure, we submit that it is a matter

worthy of consideration because when one looks at

the principle concerning views, the underlying

principle, we submit that the course that is being

followed by indicating that it is appropriate for
juries when they are having a view simpliciter, as

it has been called, to do so in the absence of the

court, really is inappropriate and it is

inappropriate for these reasons:  we submit that

what is said in the authorities about the purpose

of views is that they are not to be a substitution

for evidence; they are not to be the occasion of

experimentation by jurors - - -

MASON CJ: Is there any suggestion of experimentation?

Neilan 14 6/6/91

MR KENT:  No, there is not, Your Honour, but what we say it

is - this is the very fundamental danger in this

case. The facts were that in the evidence in the

case there was evidence of experimentation by

witnesses as to what could be seen through windows

and by the light of the moon and under a blind and

so forth. And what happened was that the jury in

fact were taken into that house and they were left

there after the learned trial judge had mentioned

some matters to them and he then left and then they

were left inside the premises.	As it were, they
were locked away from view.

Now, the vice in that is this, that they may

well have been engaging in their own exercises and

it is not like the sort of situation where, in one
of the authorities, the tribunal of fact was in

fact a judge who went along to a railway station

and made certain observations as to time and speed

of trains and so forth and then, in the course of his findings indicated that he based his findings

upon what he had seen himself.

In the case of a jury, they may well engage,

left to their own devices, in some evidence
gathering exercise or, as it has been referred to,

engaging in the role of sleuth, and no one will

ever know. In terms of the fair and proper conduct

of a trial, the parties are entitled to know so as

to be able to address themselves properly to the

material upon which a jury is relying. And,

accordingly, we say that there is, in fact, a

danger if juries are not supervised in this manner

then they may well be doing that which is

prohibited in terms of a view simpliciter.

MASON CJ: But there are always possibilities that a jury

may do something that perhaps is undesirable.

MR KENT: Yes, Your Honour, but this can be avoided, we

would submit, by a very simple point of policy and

that is that if jurors are to enter upon premises

or to view premises, that counsel is entitled to be

there and the judge to be there.

MASON CJ: Well, maybe but why should a verdict be set aside

because a judge is not there when there is no
evidence to suggest use of the view for an improper

purpose?

MR KENT: Because, Your Honour, the matter is such that it

is unlikely that anybody would ever be able to

determine that there was an improper purpose in
these circumstances. It can be simply avoided and

we submit that as a matter of principle should be

avoided because of the fact that no one will ever

Neilan 15 6/6/91

know. And, accordingly, it is appropriate for this

Court to consider this matter.

MASON CJ: Well, you cannot take it beyond that, can you?

MR KENT:  No.

On the question of ground 5, we submit this: that at page - this, as we indicated earlier, is a

matter that arises from the observations of the

Court of Criminal Appeal and is not a situation

where this question was one that was raised before

the jury but it is a matter of general interest, we

would submit, and it is appropriate for this Court

to grant special leave in respect of it.

We submit that the court enunciates this

principle: the jury was entitled, as are we, to

consider that the silence of the accused permitted

a more ready acceptance of the Crown case.	What we
submit is that this case is not such a case.

The principle underlying statements to that

effect in some authorities - and we will deal with

some of these in a moment briefly - is that where

evidence is uncontradicted, it may be that it is

easier to accept it and therefore act upon it and

that the principle should be, really, no wider than

that; that to extend it from there and make it a principle, that where an accused stands mute that

that can be used either by the jury or by the

appellate court is inappropriate and it is

particularly wrong in a case of this nature where

this was, broadly - well, entirely, a
circumstantial case where the evidence, to a large

extent, was not in dispute. It was a question of

what inferences could be drawn from that evidence.

And what had occurred was that a full account had

been given, in fact, by the applicant both in the

form of tape recorded interviews, a video interview

and a video reconstruction. So that what in fact

existed in this case was not uncontradicted

evidence as such.

BRENNAN J:  Mr Kent, correct me if I am wrong, but was this

question not introduced by the Court of Criminal

Appeal in the course of considering an objection

that the verdict was unsafe and unsatisfactory?

MR KENT:	Yes, it was, Your Honour.
BRENNAN J:	It is not a case that the jury were given any

directions on it?

MR KENT:	No, that is so, Your Honour.
BRENNAN J:	And the Court of Criminal Appeal were of the

view that this question apart there was evidence

which altered the verdict?

Neilan 16 6/6/91

MR KENT:  Yes, the court said that, Your Honour.

BRENNAN J: Then, this was, as it were, added gratuitously?

MR KENT:  Yes.

BRENNAN J: Well, it is scarcely a question upon which the ultimate decision of this Court, if special leave were granted, should turn?

MR KENT:  Save this, Your Honour, if one accepts that it is

erroneous, for the sake of argument, and although the court says, "On other grounds, we say that we find none the less the verdict was satisfactory.",

it does not, we submit, give the appearance of

justice being done when some four or five pages are

devoted to this topic to be able to say that when

one considers the case in general if one believes

or accepts this principle that that has been

divorced from the reasoning in fact, it may be that

it is articulated in that way and it is not a

question of it not being done honestly but it is a
question if one is of that opinion then it exists

and it is difficult, if not impossible, to divorce

it from the consideration of the evidence upon

which it is said the case appears to be a strong

one.

BRENNAN J:  If we were to grant special leave, we would only

get to it if we were not satisfied, this
consideration apart, that it was a strong Crown

case.

MR KENT: With respect, Your Honour, where it goes is an

area of some difficulty. Let me start again: if the question was one that had been put before the jury, a different issue altogether. But what we

are submitting is that it is unsatisfactory if the

Court of Criminal Appeal, which was charged with

the task of determining whether the verdict was

safe and satisfactory, has misdirected itself as to

a matter such as this, although it does not equate

it with that and that it is not the consideration

of this Court, then it is not essential in the

consideration of this Court to determine that

question for itself as to whether or not the

verdict was unsafe or unsatisfactory but that what

has happened is that there is a real danger of

misdirection by the Court of Criminal Appeal in its

considering that argument. And it is on that basis

that it is submitted that it is appropriate for

this Court to deal with the matter.

We would submit that the question of itself is

one of general importance and one that could well

justify the grant of special leave but we would

accept that this Court might say, "Well, if that's

Neilan 17 6/6/91

not going to have any effect upon the outcome of

this case, then maybe we don't go to it.". But we

would submit that it does, in fact, invalidate the

determination of the Court of Criminal Appeal for

the reasons we have enunciated.

MASON CJ:	I could understand that if it led, according to your argument, to the conclusion that the verdict
was unsafe and unsatisfactory. But if that is not
the conclusion that you are moving to, I do not understand the significance of the point.
MR KENT:	It is in this way, that we submit that effectively

by misdirecting itself the Court of Criminal Appeal
has deprived the applicant of a consideration of

that question at an appropriate stage in the

judicial process; in the process of appeal. And

that that court, had it directed itself

appropriately, may well have come to a conclusion

that may not be the conclusion that this Court or
any other court comes to and that if we are correct

in our submission that it is a misdirection then it

is not an answer to say, "Well, now, this Court or
another court has to be able to say that it is
unsafe and unsatisfactory, that it is appropriate
that that question should be properly dealt with by

the Court of Criminal Appeal in the first instance

when the matter comes there by way of an

application for leave to appeal to that court."

The Court of Criminal Appeal dealt with this

matter at page 45 of its judgment and we would

submit that relied particularly upon the judgment

of the Full Court in Reg v McGibbony,

(1956) VLR 424. In that case the court referred to

a number of other cases, Black v Tung - they are all set out in the judgment - De Gioia v Darling Island Stevedoring and Literage, Kops v Reg,

Rhodes, Jackson. What we submit is that the court

then referred to the fact that, again, the Court of

Criminal Appeal in Victoria, in Reg v Clarke and

Wilkin, (1959) VR 645:

expressed the opinion that in a case "like the
present when considering whether there was

evidence sufficient to support the verdict, it
would be wrong to bring into account the fact

that the accused had declined to give evidence
or make a statement".

This observation which was clearly obiter

did not advert to the potential relevance of the confirmatory function of silence for the

drawing of inferences -

The fact is, it is our submission, that the

reference in McGibbony itself is obiter and it was

Neilan 18 6/6/91

not essential to the determination of that case.

What McGibbony involved was a consideration of the

question of whether or not the learned trial judge

said to the jury was a prohibited comment, there

being a prohibition from the judge commenting on

the accused's failure to give evidence. The fact

was that in that case that reference was made by

the learned trial judge in support of comments by
the counsel for the defence urging the jury not to

use it, the fact of silence, against the accused

and the case really turned on that fact and not on

the broad statement that it was able to be used in

that manner and that that was plainly, we submit,

obiter and the authorities referred to therein, we

would submit - - -

MASON CJ: But, Mr Kent, I really do not understand this

point. At the top of page 80, after considering

the entirety of the evidence, the court says:

It is sufficient at this point to say

that without more we consider that ground 1 is

not made out. There was in our opinion a

substantial quantity of evidence to entitle a

jury acting reasonably to convict the
applicant. Indeed as we have already observed

the case was in our opinion very strong.

And then they go on to deal with this point.	It is
an additional factor.	So the conclusion does not
depend on it.

MR KENT:  Your Honour, we have made our submission in

respect of that and that is a matter, of course,

that this Court has·to determine, whether or not

that is so, but what we submit is that it is in

fact a broader consideration than that, that when

this statement is made one cannot be comfortable
that it was not involved in the process of

assessing the strength of the case and that if the

matter were a matter which did not have any influence on the court's determination, then there	was, we would submit, no need for the court to deal
with it at all and that if we are correct in submitting that the court is in error then it is a
matter that must be set right so that one can be satisfied that justice has been done; that it must
appear to be done.

So we submit that, broadly speaking, the cases

that speak of the use of the failure of an accused

to give evidence or the failure to contradict evidence are not in point in a matter of this

nature. They relate broadly in a number of cases

to the question of whether or not there was a

prohibited comment; they relate to the question of

whether or not, where there was prima facie

Neilan 19 6/6/91

evidence in a civil matter, that the failure to

give evidence might allow that evidence to be

accepted and acted upon. But no cases, none of

them, we submit, deal with this sort of situation

where a full and detailed account is given by an

accused and that it is an important matter of

principle. If this case is to be followed,

although on one view it could be considered obiter,

then we would submit there is grave danger of

injustice as a result of an unsound principle. If

the Court pleases.

MASON CJ: Yes, thank you, Mr Kent. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 4.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.20 PM:

MASON CJ:  The Court need not trouble you, Mr Bongiorno.

MR BONGIORNO: If the Court pleases.

MASON CJ:  The Court is not persuaded that there are

sufficient prospects of the proposed appeal

succeeding on grounds 1, 3 and 4. So far as

ground 2 is concerned, in circumstances where no

relevant objection was taken at the trial to the
direction, the case is not an appropriate vehicle
for the determination of the point which the

applicant seeks to raise. With respect to

ground 5, the comments of the Court of Criminal

Appeal were plainly unnecessary to the conclusion

which it reached, namely that the verdict was not unsafe or unsatisfactory. The application for

special leave to appeal is therefore refused.

AT 4.21 PM THE MATTER WAS ADJOURNED SINE DIE

Neilan 20 6/6/91