Palmer v The Queen

[2005] HCATrans 786

[2005] HCATrans 786

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B10 of 2005

B e t w e e n -

JOANNE DALE PALMER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 11.53 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If the Court pleases, I appear with my learned friend, MR A.W. MOYNIHAN, on behalf of the applicant.   (instructed by Legal Aid Queensland)

MR M.R. BYRNE:   If the Court pleases, I appear on behalf of the respondent.   (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes.

MR CALLAGHAN:   The error in this case was to put the question to the jury as regards the guilt of the accused as a choice between two alternatives.  The point will be made immediately that this error is one which is governed by well-settled principles and so it is.  This Court has considered this sort of situation in Murray v The Queen (2002) 211 CLR 193 and it is accepted that the principles are well settled. The submission is that there is a public importance in seeing them applied.

Since Murray v The Queen the Queensland Court of Appeal has dealt with the R v Young (2004) 142 A Crim R 571 where an identical error was made. Admittedly the Court of Appeal intervened in that case. Young was decided in March 2004.  Then this trial came on in July 2004 and a similar error was made.  In this case, however, the Court of Appeal did not intervene and it is submitted there is a need for correction of their attitude as to that which must flow from a breach of these principles. 

The Court of Appeal has dealt with the cases really on the basis that the jury did receive directions on the onus and standard of proof, and so they did, but we submit that the effect of the decision of this Court in Murray v The Queen is that that will not save an error of this nature.  It is also said that the jury received one such accurate direction in close proximity to the passages which are under review.  I might just go to that at application book 55.  Indeed, application book pages 54 and 55 are the centre of attention for the whole application because it is there that the error is made. 

In response to the submission that the jury received the direction that they received at page 55, lines 40 to the bottom of the page, we submit that that paragraph should be looked at in context.  It is a stand‑alone paragraph referrable again to something said by defence counsel, something defence counsel said no doubt in the full flight of an advocate’s address.  But his Honour isolated that contention of defence counsel and set it up before the jury, only to knock it down, and no complaint made as regards that. 

The statement in question, that is to say the statement beginning at about line 49, “What you are concerned with is” and so on, is in reality

something which is being said in that context and in any case is no more than one of the general statements which this Court has held will not save an error of this nature.  The generality of the statement can be assessed by reference to its terms – see line 53 or thereabouts – whether:

Joanne Palmer was a party to the offences as I’ve described under section 7.

Well, of course, his Honour said any number of things under section 7, but no detail was provided.  The error is a fundamental one, in our submission, and it needs to be made clear that compliance with the requirements in this regard are not optional.

GUMMOW J:   Thank you.  We do not need to call on you, Mr Byrne.

There were arguable infelicities in the directions given by the trial judge to the jury and the outline of the defence case might have been more detailed.  However, what was said has to be considered in the light of the strong and repeated instructions by the trial judge concerning the onus and standard of proof.  No ground of special leave has been made out there and we are also satisfied that there has been no miscarriage of justice in this case.  Accordingly, special leave is refused. 

We will adjourn to reconstitute.

AT 11.59 AM THE MATTER WAS CONCLUDED