Newton v The Queen

[2013] HCATrans 73

[2013] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A24 of 2012

B e t w e e n -

ROBERT CHARLES NEWTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 APRIL 2013, AT 9.52 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC:   May it please the Court, I appear with my learned friend, MR A.J. CROCKER.  (instructed by Bartel & Hall)

MR M.A. NORMAN:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (SA))

HAYNE J:   Yes, Mr Wells.

MR WELLS:   May it please the Court.  We make two submissions and the first addresses appellate function where the ground of appeal to that court is a miscarriage of justice by reason of unreasonable or unsupported verdict.  Any failure in that respect – that is, in respect of the appellate function – falls to be corrected, we submit, by this Court.  The second submission addresses a direction given by the learned trial judge about reasonable doubt which we submit crossed over into impermissible territory.  The Court of Criminal Appeal by its previous decisions has, we submit, allowed an error to creep into the Commonwealth and it falls, we submit, to this Court to correct this error of South Australian jurisprudence. 

Can I address the first submission based on the ground of appeal that the verdict was unreasonable or unsupported and in particular the function that an appellate court has with respect to that ground?  In this case particular impetus or appellate scrutiny was provided by the forensic disadvantages experienced by the applicant through the length of time between the alleged offending and the charge.  Your Honours will have seen from the judgment of the Court of Criminal Appeal that that matter was the subject of discussion as to the nature and quality of the direction required to be given to a jury under section 34CB of the Evidence Act which had abolished the Longman warning in particular with respect to dangerous to convict.

If I could ask the Court to take up in the casebook page 71 which shows that part of the judgment of Justice Gray, with whose judgment the other members of the Court agreed on this point, addressing what his Honour called the issue of unsafe and unsatisfactory which is the shorthand for unreasonable or unsupported verdict.  Your Honours will see that in addressing that issue his Honour cited the decision of Nguyen in this Court and passages cited by the Court in Nguyen, referring back to the seminal case of M v The Queen.  That appears at the bottom of 71 on to the top of page 72.

Our submission first of all is that insofar as his Honour regarded those extracts as setting out the authoritative guidance for the Court, it did not capture the full extent of the process of independent assessment which this Court has now required of appellate courts.  That process must go so far as to determine if the appellate court has excluded doubt or has reached a state of doubt which can only be resolved by reference to the jury’s advantage of having seen and heard witnesses. 

HAYNE J:   Well, are you not thereby seeking to hark back to the kind of controversy that the decision in M was very concerned to lay to rest?

MR WELLS:   I hope not, your Honour.  The proposition that I have just put forward, in my respectful submission, represents what, in our submission, M determined:  namely, the requirement that there be an independent assessment, but for a particular purpose.  The purposes could be described in two ways.  The first, by reference to a sentence which does not appear in the citation in Nguyen from M, starts off - the citation at the very bottom of page 71 which goes like this.  In cases a doubt experienced by an appellate court will be:

a doubt which a reasonable jury ought to have experienced.

That is the sentence which appears before the extract which appears at the bottom of page 71 and the top of page 72.  So the purpose of the examination is first of all to – in view of the appellate court to determine whether doubt can be excluded or, if there is doubt, that it is a doubt which could only have been resolved one way or the other by the jury by reason of its particular advantage.  The other purpose which the later case not cited by his Honour of SKA v The Queen in this Court is - again identified by reference to a citation of M v The Queen, paragraph 14 of SKA, namely, that ultimately it is to determine:

whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.

His Honour, in setting out the principles does not advert, however, to the further proposition that is to be derived from SKA, namely, that the process of independent assessment involves weighing competing evidence, and that is to be found in SKA v The Queen, paragraphs 22 and 24, and the further proposition from SKA, paragraph 22, that it involves the appellate function of disclosing the independent assessment.  Your Honours, before I then identify what his Honour in fact did, can I add one further matter, and that is there is a ‑ ‑ ‑

HAYNE J:   Before you do that, can I just understand - can you go to M v The Queen, please, at 181 CLR 487, particularly at 494 to 495 which is the central passage in the joint reasons in M where their Honours from about point 6 of the page over to about line 10 on page 495, as they say:

put aside [a number of] differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form –

of four sentences.  Do you accept that that is a statement of the task of the Court of Criminal Appeal?

MR WELLS:   Your Honour, with the addition of the sentence which I read out which precedes – or comes at the beginning of that passage, yes, your Honour, and indeed that is a paragraph which Justice Gray set out.

HAYNE J:   The question then becomes, does it not, if those are the principles to be applied where do we see most conveniently, in your submission, failure by the Full Court in South Australia to apply those propositions, or how do we identify that those propositions have not been applied faithfully by the Full Court?

MR WELLS:   At page 72 of the casebook, your Honours will see starting at paragraph 70 at about line 20 his Honour’s addressing of counts 1 and 2.  If necessary, I can come back to remind the Court about those counts, but our present focus is what was the function that the Court of Criminal Appeal undertook?  Your Honours will see there that there is a consistent reference to an identification of argument without, if I may be pardoned for putting it, walking the walk.  For example, paragraph 71, first sentence:

The Director pointed out counts 1 and 2 were said to have occurred at a time when the complainant was aged about five years.

I am not going to read the whole of these, your Honours, but I am picking out phrases.  The next sentence:

It was said . . . It was open to the jury to accept the complainant’s account.

Again, reciting an argument ‑ ‑ ‑

HAYNE J:   From your point of view, Mr Wells, the kick comes, does it not, in paragraph 77:

I do not consider that any of the matters raised allow the conclusion that the verdicts –

were, et cetera.

MR WELLS:   Your Honour, with respect, is entirely right but it needs to be remembered, two things, first of all, it comes after a consideration of the counts between paragraphs 71 and 76 in which there is a formula that appears and the formula ultimately is put in at the end of each of these considerations.  Again, the Director pointed out that each of the matters raised by the defendant on appeal was emphasised before the jury both during the defendant’s closing address and in the summing‑up.  So, when one gets to paragraph 77, which is the kick, we accept that.  It is very significant, we submit, that when his Honour goes to explain why he considers or does not consider that any of the matters raised allow the conclusion it is not for any reason of substance.  It is because, he says in the next sentence:

A review of the evidence in the trial discloses a detailed cross‑examination of the complainant and the jury’s attention being subsequently drawn to what was said to be material inadequacies and inconsistences in her testimony -

In other words, in our respectful submission, never walking the walk.  Even there what his Honour says allows him to come to the conclusion it is simply that the matter was fully exposed before the jury and the jury’s attention was drawn to the matter.  That, in our respectful submission, does not carry out the statutory function as it has been expounded, in our respectful submission, by decisions of this Court. 

I should turn to the second submission which is the misdirection.  Your Honours in that respect should have available to you the decision of the Court of Criminal Appeal in Forrest.  I invite the Court to take that up.  Your Honours will understand that although before the Court of Criminal Appeal in this case matters of burden of proof were discussed, the particular issue which we presently raise was not raised directly before the Court of Criminal Appeal but the existing jurisprudence of the Supreme Court in South Australia has given an imprimatur to the form of the direction that was given by the trial judge in this case. 

If your Honours, for that purpose, take up the case book as well and turn in it to page 9, your Honours will see the direction.  It is at the top of page 9 and the first part of the paragraph at the top of page 9 is unexceptionable.  The portion that we take issue with, with great respect, is the portion that starts with the sentence “At the end of the day”.  So here is, first of all, a direction which starts off according to Hoyle, but his Honour takes the further step and introduces that further step, in effect, by saying, “Look, just so that you can understand what I have just said, here I will put it to you again in this summary form”. 

So that the “At the end of the day” direction becomes the principal direction and in it, as your Honours will see, the question that the learned trial judge suggests the jury should ask itself is, “Am I in doubt as a reasonable person, acting reasonably about the guilt of the accused?”  If I can try to encapsulate our complaint about that in this way, we would say that what is erroneous about that in the end is this, that there is a difference to be noted, a significant difference to be noted between, on the one case, a question that the jury asks itself, which is “Am I in doubt” or, as Justice Mullighan used to put it, “Is this a doubt I am prepared to entertain?” on the one hand which is exactly correct and on the other hand, a question which is premised upon the existence of a doubt already entertained.  It would be in this form, “If I am in doubt am I acting reasonably” or, “If this is such a doubt, that is one that I am prepared to entertain, am I acting reasonably?”

The moment that is introduced, in our respectful submission, the jurisprudence of this Court, and as recognised by all courts in Australia, dictates that that is impermissible because it invites the jury to submit its doubt to an assessment as to its quality whereas, of course, the point is if a jury entertains a doubt, then it is taken to be a reasonable doubt. 

Now, your Honours, in Forrest, the direction was very similar.  Your Honours will see in the Law Society Judgment Scheme version which your Honours should have before you, in paragraph 7, the direction and, there, the question that was suggested that should be asked of themselves as jurors was:

‘Am I in doubt?  As a reasonable person acting reasonably, am I in doubt about the guilt of the accused?’”

The Court of Criminal Appeal, principal judgment delivered by Justice Bleby, at paragraph 21 on page 268 took the view that it was an – that is, the acting reasonably – was an undesirable addition but still felt able, in the absence of objection from counsel, amongst other things, to view the direction as still, as it were, addressing the persona of the jury rather than the process by which they come to a conclusion about doubt. 

In that, in our respectful submission, the Court of Criminal Appeal, with great respect, erred and we are inviting this Court to draw the line on any use of words which invites the jury to assess the quality of its doubt.  Our respectful submission is that the direction here did exactly that.  Can I just add to that, your Honours?  The Court of Criminal Appeal in Forrest took some comfort from their conclusion by referring on the next page, page 269, to the exercise that an appellate court undertakes when assessing the quality of the jury’s verdict - referring back to the words of Justice Dawson in Chidiac, your Honours will see that at the top of the next page - and drew from that passage comfort from the proposition cited in relation to the appellate function:

If upon the whole of the evidence a jury –

This is looking at it from the point of view of the appeal court now:

acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory.”

In our respectful submission, that is a false and, with respect, dangerous analogy to be drawing for the purpose of comparing the permissibility of a direction given to the jury about their own function, not the appellate function.  On that basis too, we respectfully submit that this is a matter upon which this Court should pronounce, as I say, for the purpose of correcting an error which, in our submission, has crept into the Commonwealth.  Those are our submissions. May it please the Court?

HAYNE J:   Yes, thank you, Mr Wells.  We need not trouble you, Mr Norman.

The Court of Criminal Appeal of South Australia stated accurately the well‑established principles that governed the resolution of the first issue which the applicant seeks to agitate in this Court.  No disputed question of principle would fall for consideration if special leave were to be granted in that respect.  As to the second point, it is well established that no elaboration can usefully be made of the phrase “beyond reasonable doubt”.  The Court of Criminal Appeal in this matter rightly discouraged any attempt at explaining the phrase.  We are not persuaded that it is arguable that there has been a miscarriage of justice in this matter.  Special leave to appeal is refused.

AT 10.12 AM THE MATTER WAS CONCLUDED