Olivier v The Queen

[1994] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S23 of 1994

B e t w e e n -

HAYDEN RODNEY OLIVIER

Applicant

and

THE QUEEN

Respondent

Second Respondent
  Application for special leave
  to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 11.31 AM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC:   May it please the Court, I appear for the applicant in this matter, with my learned friend, MR I.H. WALLACH.  (instructed by T. Murphy, Legal Services, Legal Aid Commission of New South Wales))

MR N.R. COWDERY, QC:   May it please the Court, I appear for the respondent, with my learned friend, MR P.G. BERMAN.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN J:   Yes, Mr Norrish.

MR NORRISH:   If Your Honours please, as it may be relevant to a grant of special leave in this application, this Court has not previously considered in detail the scope of the rule, as it is described as the rule, in Jones v Dunkel, as it applies in criminal cases, and we would respectfully submit that this particular application raises that issue for consideration by this Court at this time.

This matter also raises the issue of the terms of an appropriate direction to be given when a person who might be expected to give evidence is not called, particularly in circumstances, as in this trial, where the witness not called might be expected to be called by a co‑accused.  As an ancillary issue, it also raises the issue of whether the failure to give a direction of the sort applied for at the trial is an error of law, if it be an error, or an error of fact on the part of the trial judge.

TOOHEY J:   Mr Norrish, this is an extension of time ‑ ‑ ‑

MR NORRISH:   I do apologise, yes, it is, Your Honours, and I should have raised that matter from the outset.  We seek an order for the enlargement of time; the application having been lodged out of time.

BRENNAN J:   What is your view about that.

MR COWDERY:   The application is not opposed, Your Honour.

BRENNAN J:   Time will be extended.

MR NORRISH:   Yes, thank you, Your Honours.

Your Honours, this was a very unusual case as it transpired, because the proof of guilt of the applicant was, in fact, made stronger at the end of the case of the co‑accused than it was at the conclusion of the Crown case.  The Crown case against the applicant was essentially based upon ‑ apart from the formal proof of the stabbing of the victim ‑ the evidence of the wife of the co‑accused, in relation to admissions made by the applicant to her, shortly after the co‑accused had been arrested by police.

In fact, the jury was directed that the evidence of the co‑accused which, importantly in our submission so far as this application was concerned, came after the case for this applicant had closed.  The evidence of the co‑accused was the subject of an accomplice direction and His Honour directed the jury that the evidence of the wife given in the Crown case was capable of corroborating the evidence of the co‑accused.

TOOHEY J:   Do you quarrel with that?

MR NORRISH:   We have no quarrel with that direction at all and, of course, it is trite to say that the evidence of the co‑accused was generally available in the trial as evidence going to the guilt of the applicant.  The critical issue was twofold.  Firstly, the way in which the co‑accused’s case was presented, and particularly the identification of the person who was referred to in the appeal papers as Christine, and was referred to by that name in the trial, are raised in circumstances where the applicant had been denied the opportunity of cross‑examining the co‑accused’s wife in the Crown case, about matters relevant to observations she may have made on the morning that the co‑accused was arrested by the police. 

The co‑accused’s wife was said to be suspect because, firstly, she may have had an interest to serve in supporting the co‑accused’s case.  The co‑accused’s case being that he was at the crime; that he was, in effect, trying to prevent the crime occurring and trying to distance himself from the actions of what he described as those of the applicant.  And the other problem with the co‑accused’s wife’s evidence, as it was relevant to implicating the accused, was that in the applicant’s case he called evidence to contradict her assertion that the applicant had, in fact, made admissions to her after the applicant’s co‑accused had been arrested.

As was pointed out in the outline of facts, what had happened in this matter was that the co‑accused was identified at the scene, and it is quite clear that the identification of the co‑accused was relayed to the police and the co‑accused’s wife assisted the police to locate the co‑accused at a flat in a block of units as Surrey Hills.  The co‑accused was interviewed by the police and raised the issue of being present but seeking to prevent the crime, or the attack, occurring, in effect, seeking to distance himself from the actions of the person with the knife.       He identified the applicant as having been present and he claimed in his record of interview that he and the applicant had, after the attack, gone to a flat in Surrey Hills where they slept the night.

Now, it emerged in various ways throughout the evidence before the co‑accused’s case was presented that, firstly, the co‑accused’s wife had been to the same flat and there had located the applicant to, in effect, surrender him to the police who were waiting downstairs.  Secondly, the witness called in the applicant’s case to contradict the assertions of the co‑accused’s wife, herself claimed to have slept in the same flat; said that she had seen neither the co‑accused or the applicant.  The relevance of the movements of the co‑accused with the applicant was critical to the credibility of co‑accused’s account because the co‑accused was claiming association with the application and, if it was shown that the applicant and the co‑accused were not together at Christine’s flat, it would raise a significant doubt as to the identity of the co‑offender.

BRENNAN J:   What is the point of principle.

MR NORRISH:   Your Honours, application was made for the trial judge to give a direction in the nature of a Jones v Dunkel direction, during the course of the summing up.  It is conceded that counsel for the applicant at trial wrongly suggested that it was a matter that ought be given in respect of the Crown and, in fact, as was submitted before the Court of Criminal Appeal and certainly before this Court, the issue of a direction as to inferences to be drawn concerning the failure to call a witness was a direction generally available for which the jury could, if it so desired, draw inferences adverse to either the Crown or the co‑accused. 

The Jones v Dunkel direction, sometimes described as a rule of practice, is a very important rule of practice in the administration of criminal justice, but it is a rule of practice observed in circumstances which are difficult to define with precision.

DAWSON J:   You say it is important, Jones v Dunkel.  It is very rarely, if ever, applied in criminal ‑ ‑ ‑

MR NORRISH:   Your Honours, it may be infrequently applied; I do not know about rarely.

DAWSON J:   Well, for obvious reasons because, in criminal cases there may be all sorts of reasons why a witness is not called by one side ‑ ‑ ‑

MR NORRISH:   Yes, that is true.

DAWSON J:   ‑ ‑ ‑ or the other, and unlike civil cases, the same inferences simply cannot be drawn.  Apart from which there is the onus of proof question and the right to remain mute and so on.

MR NORRISH:   Well, putting aside the onus of proof question, there was not any issue arising in this trial as to remaining mute in face of the charges, and I agree that it is a ‑ ‑ ‑

TOOHEY J:   There was a concern by the trial judge that the situation, having arisen, that the more you said about it, the more it might rebound against the accused.  Is that not the view that he took?

MR NORRISH:   Well, he took that view but, Your Honours, we submit, as we set out in the application book and in the outline of argument, that he was wrong to suggest that it was a witness that the applicant could have called.  It was, in our respectful submission, quite wrong for His Honour, simply because the applicant had known the person Christine, to suggest that the applicant bore any responsibility for calling a witness.  She was a witness ‑ ‑ ‑

TOOHEY J:   Responsibility is not quite the same thing as saying that he could have called her.  Are you saying that he could not have called her?

MR NORRISH:   Your Honour, we would say the circumstances in which her identity was revealed in the trial it would have been very difficult for him to have called her, not knowing precisely the significance of her role in the affair, as it was raised in the co‑accused’s case, until he was cross‑examined.  You see, her identity only emerged when the applicant was being cross‑examined by counsel for the co‑accused.

TOOHEY J:   I understand that, and that is what makes it difficult to say that the Crown should have called her.

MR NORRISH:   Well, Your Honour, the point about the Crown calling her was that it was open for the Crown to call her in rebuttal of the alibi defence raised by the applicant.  The applicant’s case was not simply denial of the charge, but he said he was not even present, because he was at his father’s place, and he called his father to give evidence in support of that alibi.  So, her evidence, if she was available to give evidence and if, in fact, she could have cast light upon the matter was, in one respect, significant so far as the Crown was concerned, because it ‑ ‑ ‑

TOOHEY J:   When you say he was not present, Mr Norrish, what do you mean?

MR NORRISH:   He was not present at the commission of the offence.

TOOHEY J:   But there was evidence from the co‑accused that he was, in corroboration of that evidence by the wife of the co‑accused.

MR NORRISH:   I apologise.  The evidence in proof of guilt included evidence of his presence at the scene, but I am saying that the applicant’s case at trial was that he was not present.  He raised alibi and called evidence in support of that alibi to support the evidence that he gave.  Therefore, the person, Christine, was relevant in two respects so far as the co‑accused was concerned.  She was relevant to the issue of association between the applicant and the co‑accused shortly after the offence was committed.  She was also relevant as a witness that could have rebutted the alibi raised by the applicant and could have been called by the Crown in reply.

May I take Your Honours to Buckland v The Queen, (1977) 2 NSWLR 452, just briefly, if I may. The relevant passages dealing with the issue that we would refer the Court to appear between pages 457 and 459. There is ample authority for the proposition that whilst Jones v Dunkel directions - the Jones v Dunkel decision in the direction which is given in accordance with that decision arise in the context of civil cases, but there is ample authority for the proposition that the direction can be given in criminal trials.

BRENNAN J:   Do you accept this, do you?

MR NORRISH:   I accept that it can be given in criminal trials, and it ought to have been given in this case and there was a miscarriage of justice, given the special circumstances in which the issue arose.

BRENNAN J:   Yes, except what was said in Buckland’s case?

MR NORRISH:   Your Honour, we submit that Buckland leaves open areas of doubt or uncertainty that the High Court ought to resolve, bearing in mind it has not addressed before the issue of the appropriateness of giving a Jones v Dunkel direction and the appropriate direction to give in a criminal trial.  Justice Dawson made the point that it was a rare event for the direction to be given.  The reason for that arises, if I could take Your Honours directly to page 459 of the judgment, picking up the last comments of the Chief Justice in this regard, at paragraph A,  His Honour said:

The foregoing comments were made in the context of civil litigation.  In criminal trials, there are some situations in which comment is expressly precluded by statute -

and citing particular examples:

In general, however, this rule of practice applies equally in criminal as in civil proceedings.

and the words we emphasise:

In criminal proceedings, however, the making of a comment or the indication of the available inference will be attended by a marked degree of caution, inasmuch as in many cases the absence of a witness either for the Crown or the accused might well be explicable upon grounds not readily capable of proof.  If it is suspected that there may be some valid reason for a witness not being called, then, in a criminal trial in particular, a careful appraisal is requisite before commenting on the absence of that witness either in address or in the summing up.

DAWSON J:   In this particular case, where the people involved had a certain background, may have had prior convictions, may or may not have been reliable, may have bad character and so on; really, it would not be an appropriate case to make a comment, would it?

MR NORRISH:   Your Honour, in circumstances where the identity of this person emerged after the Crown case had closed, and had emerged in circumstances which were, in our submission, prejudicial to the applicant, it would have been appropriate to make a comment, particularly, bearing in mind, that the co‑accused had not sought through his counsel or directly to explain his knowledge of the whereabouts of Christine to explain her absence.

TOOHEY J:   But in one sense it more or less worked to the advantage of the accused, did it not?  He said that he spent the night at this flat, identified the woman who was an occupant of the flat.  There was the evidence for what the jury might make of it.

MR NORRISH:   Your Honour, it could not have worked to the advantage for the jury not to have had the benefit of a direction as to what inferences it may draw from the absence of the witness because if the jury were given that direction they may well have concluded that it was open to them to draw an inference that the witness may not have assisted the co‑accused in a very important matter that went to the truthfulness of his account.  If they were given direction in relation to the matter then it was open to them in those circumstances to draw an inference which would have assisted the applicant, not hindered the applicant.  As it was, the matter was left as one without direction.

TOOHEY J:   But in the end, so far as this aspect is concerned, Mr Norrish, it is really a question of whether there is any miscarriage of justice caused by the failure of either the Crown or co‑accused to call Christine.

MR NORRISH:   Yes, and the Court of Criminal Appeal held there was no miscarriage of justice, having observed in passing, of course, that one would have expected in the circumstances that it would have been a witness that was relevant to the co‑accused’s case.  We submit that that was an error on the part of the Court of Criminal Appeal, to hold there was no miscarriage of justice in the absence of direction, because the absence of Christine unexplained, worked to the detriment of the applicant in circumstances where the proof of the applicant’s guilt was, in our submission, contrary to what has been submitted by the Crown in its written submissions, was very much dependent upon the evidence of the co‑accused.

BRENNAN J:   Would it be necessary to give a direction that if she had - she may not have been called because she may not have been willing to give evidence which would implicate here in having protected the accused?

MR NORRISH:   That would not have been an appropriate direction because there would not have been any evidence of that.

BRENNAN J:   Of course there would not be any evidence of it, but if one has to speculate in these criminal cases as to why somebody is not called, is it necessary that the speculation be that they would not assist the case that was being made against the accused?

MR NORRISH:   Your Honours, not directing the jury in relation of the matter, in the circumstances, could invite speculation on the part of the jury without assistance from the trial judge.

BRENNAN J:   What I am pointing out is that the directions that you are seeking seem to me to not necessarily be always the sort of directions that ought to be given in protection of an accused’s interest.  Secondly, that, for my part at all events, unless it is essential for this Court to state what trial judges must say in a summing up, the best rule is that the trial judges should tailor their summing ups according to the circumstances of the case.

MR NORRISH:   Yes.  Of course, in this matter, we say there were very unusual circumstances given what we have said about the reliance of the Crown on the evidence of the co‑accused and the way in which the co‑accused’s case came after the applicant.  The co‑accused’s account, I should say, not only implicated the applicant but it defined the applicant’s role.

TOOHEY J:   That is perhaps not quite right, is it?  I mean, the role of somebody, the other person, was defined by the witness who observed the incident.  She was unable to identify the applicant.

MR NORRISH:   Yes.

TOOHEY J:   Once identification was forthcoming, then his role was not dependent upon the evidence of the co‑accused alone but on the evidence of the witness who saw the incident.

MR NORRISH:   Your Honour is absolutely right, except in so far as the co‑accused’s account put meat on the version by explaining the circumstances in which the knife was carried and why the two men had gone to the house, and thus raising the motive for the charge of robbery, because it was the applicant who was found guilty of the more serious crime.  The co‑accused was found guilty of the alternate count of malicious wounding which was available on the evidence of the victim.

TOOHEY J:   Mr Norrish, could I just ask you something?  You said nothing about the question of corroboration.

MR NORRISH:   Yes.

TOOHEY J:   It does appear as a proposed ground of appeal but I take it that is not being advanced.

MR NORRISH:   I apologise to Your Honours.  That special leave aspect is not pressed in this application.  They are our submissions on behalf of the applicant.

BRENNAN J:   We need not trouble you, Mr Cowdery.

This application for special leave to appeal is from a judgment of the New South Wales Court of Criminal Appeal, dismissing an appeal from the applicant’s conviction on a charge of assault with intent to rob and wound. 

The chief issue addressed by counsel for the applicant concerns the refusal of a trial judge to direct the jury regarding the failure of the Crown or the co‑accused to call a particular witness.  The Court of Criminal Appeal concluded that in the circumstances there was no risk of miscarriage of justice in the trial judge concluding, as he did, that it was better not to say anything in that regard.       In the particular circumstances of this case, that conclusion was reasonably open to the Court of Criminal Appeal. 

There is no challenge to what was said by the Court of Criminal Appeal in Reg v Buckland, (1977) 2 NSWLR 452, at pages 457 to 459. There is no question of principle requiring a grant of special leave to appeal. The application for special leave to appeal is therefore refused.

AT 11.51 AM THE MATTER WAS ADJOURNED SINE DIE