Parker v The Queen

[1996] HCATrans 369

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B11 of 1996

B e t w e e n -

TIMOTHY LAWRENCE PARKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 2 DECEMBER 1996, AT 12.03 PM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC:   If the Court pleases, I appear with, MR P.J. ALCORN, for the applicant.  (instructed by Legal Aid Office (Queensland))

MR M.J. BYRNE, QC:   If the Court pleases, I appear with my learned friend, MR M.C. CHOWDHURY, for the respondent.  (instructed by the Director of Public Prosecutions (Queensland))

GAUDRON J:   Yes, thank you.

MR FLEMING:   If the Court pleases.  As the Court of Appeal asked, and so no doubt this Court will ask, what is a trial judge to do when the trial judge is faced by an inquisitive jury who ask questions which really go outside of the realm of the evidence?  May we answer that question in two ways?  First, negatively, the trial judge, over the objection of both counsel - both the Crown and defence - ought not to have drawn to the attention the fact that the spouse was a compellable witness, but had an option as to whether or not she gave evidence.

GAUDRON J:   That is not what the trial judge did.  He said nothing about her option.

McHUGH J:   It was quite favourable.  The direction was rather favourable.  The trial judge could have said that the wife was compellable on the part of the accused.

MR FLEMING:   Yes, he might have said that, but we would have had another ground for being here if that was the case.  We would submit that what in fact happened was the trial judge linked the interests of the accused and that of the spouse.  That first appears at page 4 of the record, where his Honour was summing up to the jury, where he said:

It is also basic to our system of law that an accused person and that person’s spouse is not compelled to give evidence and you can not draw any inference at all from the fact that neither the accused nor his spouse gave evidence.  That, again, is basic to our system of law.

His Honour said the same thing again at page 22, at line 25:

and I have told you that in a criminal trial neither the accused nor the accused spouse can be compelled to give evidence, and that covers a couple of the questions that you have asked.

KIRBY J:   Well, what is your submission that the judge should have done?  He should have just ignored it, or said, “I cannot answer that,” and then the jury goes in, they scratch their heads and they say, “What a puzzling thing this is.  How strange are the processes of the law.”

MR FLEMING:   Yes, we understand what your Honour is saying to us.

KIRBY J:   Well, what is the answer?

MR FLEMING:   We submit that the answer is that he should not have done anything except say to the jury, “This matter is outside of your competence.  You should not entertain the question.  It is not part of the evidence in this case.”

KIRBY J:   They go back and they first of all ask themselves, “Now, what does entertain mean?” because that is a word that juries would never use.  That is just something we lawyers use.  And then they would say, “Well, why will not he answer?  What a disrespectful judge.  Here we are, trying to do our best.  We are puzzled over this, and he says just ignore it.”

MR FLEMING:   Yes, and we submit that there is good reason why he ought to ignore it, because a spouse might have many different reasons for not giving evidence.  What his Honour has actually achieved by linking the accused and the spouse together here is to bring their interests together.  An accused may well have an interest in not incriminating himself; a spouse might have an altogether different interest.  His Honour made no distinction between those two, and the way in which he did it, he left open for the jury to speculate that the spouse also had an interest in not giving evidence because the accused might be guilty and that, unfortunately ‑ ‑ ‑

KIRBY J:   There is a line of authority in New South Wales, is there not, where there is a prohibition in the Crimes Act about telling the jury concerning the accused, or used to be the accused’s right not to give evidence, and there have been some cases which I think give some support to you, that the judge, even if asked, should not try to explain it - the statute for.....   It is a double‑barrelled name.

MR FLEMING:   Yes.  Your Honours, I should add that since Demirok this principle has been enshrined in the Commonwealth Evidence Act by a combination of sections 12 and 19, I think it is, which is also then picked up by the New South Wales Evidence Act.  It has also been legislated on in Western Australia.  I think at the time of Demirok being decided Victoria was the only State which had such a piece of legislation.  But what we are faced with now is an extension, we would submit, of Demirok.  Demirok, we accept, is different in that the learned trial judge allowed the spouse to go back into the witness-box after the jury got back in and then repeated what she had previously said.

We accept that there is a significant difference; however, the principle of Demirok is to prevent the jury from speculating, in any way whatsoever, as to why a spouse did not give evidence.  We submit that this is a simple and logical extension of the principle in Demirok.  Can we draw the Court’s attention ‑ ‑ ‑

KIRBY J:   Well, as you say, this is a very different case.  This is a very different case.

MR FLEMING:   Yes, it is.

KIRBY J:   How many times are we going to have cases where a jury asks a question like this, a judge gives a direction which is favourable to your client and, really, it is a one‑off situation, is it not?

MR FLEMING:   Your Honours, we would submit that the answer is not favourable to our client, because it allowed the jury then to speculate, and speculate for the same reasons.

GAUDRON J:   Well, that really is the issue.  In the circumstances of this case, where the jury was plainly puzzled about the involvement of the wife in events of that night, where was the unfairness in the answer that was given, and in what way could it possibly have impacted on the jury’s deliberations?

MR FLEMING:   Your Honours, the unfairness is to allow the jury then to speculate that the spouse might not have given evidence for the same reason ‑ ‑ ‑

GAUDRON J:   They were told they were to draw no inference.  They were told they were to draw no inference.  Without that statement, all sorts of speculation may have occurred, and it may have been detrimental to your client.  But the direction was “no inference was to be drawn.”

MR FLEMING:   Yes, your Honour, indeed.  However, even mentioning the fact gave rise to the speculation about which Demirok was concerned.

GAUDRON J:   The speculation occurred before.  The jury itself was speculating, without any intrusion of a Demirok situation.

MR FLEMING:   Yes.  And it is our simple submission that the learned trial judge ought to have informed the jury that it was not for them to consider that question at all.  It was not part of the evidence of the case.  They are our submissions, if the Court pleases.

GAUDRON J:   We need not trouble you, Mr Byrne. 

The Court is of the view that in the circumstances of this case, where the jury was plainly puzzled as to the part played by the applicant’s wife in certain events which occurred on the night of the murder, the direction which is presently challenged, or attempted to be the subject of a challenge, was not productive of unfairness and did not involve any miscarriage of justice.  The appropriate order is that the application for extension of time be refused.  The order will be in those terms.

AT 12.13 PM THE MATTER WAS CONCLUDED