PFC v The Queen

[1993] HCATrans 293

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S4 of 1993

B e t w e e n -

PFC

Applicant

and

THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 12.11 PM

Copyright in the High Court of Australia

PFC 1 8/10/93

MR P.J. HIDDEN, QC:  May it please the Court, I appear for

the applicant. (instructed by Jeffreys &

Associates)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR P.J.P. POWER, for the Crown.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

MASON CJ: Yes, Mr Hidden.

MR HIDDEN:  May it please the Court. Your Honours, two

matters arose in this application: the first, it

has to be acknowledged, delves into an area of

criminal jurisprudence, which is not particularly
popular these days, in the Commonwealth of

Australia. That is the question whether His Honour ought to have given a direction about the fact that

the applicant chose to give evidence in his defence

at his trial.

Your Honours, there is little I can add to

what appears in the outline of argument at page 46

in relation to that matter, except perhaps to say

this. Mr Justice James, who gave the leading

judgment of the Court of Criminal Appeal,

acknowledged at page 36 of the application book,

commencing at page 9, that it is common where an

accused gives evidence in New South Wales for a

judge to give a direction and His Honour set out

there the sort of direction that is commonly given

in cases such as this.

With respect, Your Honours, I would add to the

first paragraph of His Honour's remarks the fact

that judges commonly also give the direction that

if the accused had chosen to make an unsworn

statement, no comment upon his failure to give

evidence could have been made.

MASON CJ:  What was the original basis for the giving of

this direction? I am not talking about this trial;

I am talking about historically.

MR HIDDEN:  Your Honours, there appears to be no authority

on it; it was simply that, given that the state of

the law in New South Wales was that an accused

could make an unsworn statement and that his

failure to give evidence could not be the matter of

comment, it was seen that as a matter of fairness,

where an accused chose the tough option, if you

like, Your Honours, of getting sworn evidence, then

some credit ought to be accorded to him for that

fact, and that not only would counsel address

lavishly on the matter, but the judge would give

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the weight of his judicial authority to the

fact - - -

DAWSON J:  It is usually said that is the most he can do

but, on the other hand, people do tell lies in the

witness-box, so it balances out really, does it

not?

MR HIDDEN: Well, not really, Your Honours. I do not

suggest that where an accused chooses to give

evidence, his evidence should for that reason be given greater weight then any other witness. It

falls to be evaluated like any other witness, and

that direction is commonly given too.

MASON CJ: But he is a courageous man, a good chap, who has

come along and elected to take the hard way.

MR HIDDEN:  I suppose so, Your Honour, but it is this, I

suppose: the Crown bears the burden of proof; the

accused could have remained silent or made an

unsworn statement. Now, true it is once he chooses

to give evidence, his evidence falls to be

evaluated like anyone else. The difference is

other witnesses do not have the choice; he did.

That is a relevant matter for the jury to take into account in considering the evidence and considering

the material in the case as a whole.

MASON CJ: But you agree with what Mr Justice James said,

that it is common for the trial judge to tell the

jury what appears there under 1 on that page?

MR HIDDEN:  Your Honours, when I said the matter was devoid

of authority, there certainly is - I have referred

in the outline of argument to the unreported

decision of ..... which is against me, but the matter

is largely devoid of authority and has not been the

subject of works by learned authors, Your Honours.

I can only say, for what it is worth, I have never

known a trial judge to decline to give a direction.

MASON CJ:  Do you mean decline in response to an

application?

MR HIDDEN: Yes, I have occasionally had to ask,

Your Honours, yes.

DAWSON J:  I think that is one of the troubles here, that it

was not sought. Really we are dealing with a

refusal of leave to raise these points, are we not?

MR HIDDEN:  I understand that, Your Honours. I am mindful

of the fact that no direction was sought.

MASON CJ: But what is the situation when no direction is

sought? It may or may not be given.

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MR HIDDEN: Well, Your Honour, it is my submission that the

direction ought be given.

MASON CJ:  I realize that, but I am asking you about a state

of fact. When an application is not made for such

a direction, what is the practice?

MR HIDDEN:  Your Honour, I have never known the application

not to be made, except for this case, to be

perfectly honest.

MASON CJ: But that rather suggests that the application is

always made.

MR HIDDEN:  I think it is, Your Honour, but my experience is

that the direction is almost invariably given

without being asked for.

MASON CJ:	I see, well, that is really what -
MR HIDDEN:	When it has not been given, it is asked for and

given.	Now, Your Honours, I am well aware of the
difficulty that no application was made here.	To
that I can say only that none of the grounds of

appeal was the subject of any application in this

matter and one cannot conceive of any tactical

reason why counsel would have chosen not to seek

the direction. Subject to that, Your Honours,
there is nothing further I can say as to that

matter.

Your Honours, the other matter is the lack of

any direction in the summing up about the evidence

of a pattern of sexual misconduct with this girl. noted again that no application had been made for

one and took the view that in any event there was

no miscarriage because the elements of the
offences charged had been explained to the jury and

the evidence of the girl as to the other matters

was expressed in very general terms.

DAWSON J:	It is easy to understand why that application may have been made here for a direction, because it may
be to the detriment of the accused - a direction of
the sort that would be given.
MR HIDDEN:	To the extent that it might highlight the

matter, Your Honours, I can understand that.

DAWSON J:  And when one starts talking in terms of guilty

passion, it does not always sound too good in

defence counsel's ears.

MR HIDDEN: Perhaps not, Your Honour, but in so far as one

of the matters which influenced the Court of

Criminal Appeal was what was said to be the general

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nature - perhaps if I could take Your Honours to

page 34 of the book, right at the top of the page,

His Honour Mr Justice James said:

In this case the evidence of other acts was

given briefly in the most general terms.	No
specific act was referred to.

Well, Your Honours, that is always the case, in my

experience. Invariably, the child gives evidence

of the counts in the indictment with greater or

lesser detail and then simply says, "and he was

doing it to me for years, since I was seven and it

stopped when I was fifteen and it happened two or

three times a week." This was about as particular

as it ever gets. This girl said, "As to the first

count where he took me into his bedroom on a

Sunday, that same thing happened regularly on Sundays and then less regularly, but still on Sundays later." It never gets any more specific

than that, and if that is a reason for saying there

need not be any direction, then you would never get

a direction, in my submission, Your Honours.

DAWSON J: It seems to me that counsel would have thought

carefully about this as to whether he really did

want a direction of the sort we are talking about

or not, and he chose not to apply for one, and I

can understand that.

MR HIDDEN:  To that I can only say, Your Honour, I would

like to think that was the case, but what concerns

me, Your Honours, is that what on earth would a

jury make of this evidence if they are not told

what its place is. There was apparently a one-line

exchange between His Honour and the learned Crown

prosecutor at the time the evidence was admitted,

but there the matter ended.

It is interesting to note, Your Honours, that

in the summing up at page 13 of the book,

His Honour referred to this material - this is at

page 13, line 12: 

she said that every weekend similar events

occurred to the first Sunday. She said when

she was 8 or 9 it happened every Sunday and

then as she got older it happened perhaps

every other weekend.

Then, Your Honours, later in the summing up, at

page 20 of the book, His Honour was summarizing the

submissions of counsel, and at line 12 it was said:

The Crown says that you would be

satisfied beyond reasonable doubt of each

count on the indictment. The Crown says that

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you will be satisfied on Leanne's evidence

that sexual intercourse indeed did take place

and it took place when she was under the age

of 10.

Well, the difficulty there, Your Honours, is that

the jury had heard, "Yes, it took place about every

Sunday when I was under the age of 10". Now true

it is they were directed as to the counts in the

indictment and as to the elements to be proved, but

there is a very real danger that at the end of the

day the jury would simply say, "Well, this girl

said it happened every Sunday, so we'll convict

him.	It doesn't actually matter which one."
It is terribly dangerous material to leave with a jury uninstructed, Your Honours.	Lawyers

have wrestled for years over the principles

governing its admissibility and the relevance it
has; laymen can hardly be expected to deal with

that through hearing a one-line exchange between the learned trial judge and the Crown prosecutor

and nothing more said about it, as to what its

place is in the trial and as to whether it is

evidence available for a finding of guilt or

whether it is merely background evidence bearing

upon the counts charged. It is not an easy matter;

juries cannot deal with it without instructions.

Whether the failure to apply for any direction was

the result of a tactical decision or no, in my

submission, Your Honours, a direction was called

for in this case, as it must be in every case where

evidence of that kind is led, and the absence of

the direction almost inevitably means a miscarriage

of justice. It is my submission that this Court

ought say that this direction must always be given

when evidence of that kind is led.	Those are my
submissions, if the Court pleases.

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

In this application the applicant seeks

special leave to appeal with a view to challenging

the sufficiency of the directions given by the

trial judge. The applicant argues that the trial

judge failed to give directions on two matters:

one, the fact that the applicant chose to give

evidence rather than make a statement; and two, the

sexual conduct of the applicant other than that

charged. As no directions on these matters were

sought at the trial, it would not be appropriate to

grant special leave to appeal on the ground of

miscarriage. The application is therefore refused.

AT 12.24 PM THE MATTER WAS ADJOURNED SINE DIE

PFC 6 8/10/93