Quach v The Queen

[2012] HCATrans 350

[2012] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M45 of 2012

B e t w e e n -

HUY VINH QUACH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2012, AT 11.44 AM

Copyright in the High Court of Australia

MR J.E. McLOUGHLIN:   If the Court pleases, I appear with my learned friend, MR P.J. SMALLWOOD, for the applicant.  (instructed by Victoria Legal Aid)

MR T. GYORFFY, SC:   If it please the Court, I appear with my learned friend, MS S.A. FLYNN, for the respondent.  (instructed by Director of Public Prosecutions (Vic))

HAYNE J:   Yes, Mr McLoughlin.

MR McLOUGHLIN:   Your Honours ‑ ‑ ‑

HAYNE J:   This is a matter in which there is an extension required, I think, is there not?

MR McLOUGHLIN:   Yes.

HAYNE J:   Is that opposed, Mr Gyorffy?

MR GYORFFY:   No, your Honour.

HAYNE J:   Yes.  You have that extension.  Yes, Mr McLoughlin.

MR McLOUGHLIN:   Thank you, your Honour.  Your Honour, I hope that the argument is moderately clear from the written submissions and also from the judgment of her Honour the Chief Justice in the court below.  Could I just address your Honours on a couple of additional matters which I hope will bear particularly on the issue of why special leave might be appropriate in this case?

HEYDON J:   What direction should have been given on your argument?

MR McLOUGHLIN:   Your Honour, a direction should have been given crucially that the absence of any evidence from the defence was not a matter which made it easier to accept the prosecution case, that being quintessentially the essence of Jones v Dunkel.  As pointed out by your Honour in HML, that contrary to what is sometimes thought and appears to be the position as expressed by Wigmore in the United States, it is not that the absence of evidence can permit an inference that there is material adverse, but simply in Australia that it is easier to accept the opposite case if there is nothing put in contradiction.

HEYDON J:   The actual question from the jury was directed to character witnesses.

MR McLOUGHLIN:   Yes.

HEYDON J:   Now, what direction should have been given about character witnesses?  You just then referred to what might be called a general Azzopardi direction.

MR McLOUGHLIN:   Right.

HEYDON J:   How does an Azzopardi direction apply in relation to a jury who are troubled about the lack of a character witness?

MR McLOUGHLIN:   Well, at the end of the day, that is why there was a great difficulty about what direction would have been given at the end of the day, that is why one of our grounds is that the jury should have been discharged because they had reached a point in their deliberations where a Pandora’s box had been opened which could not be closed again.  But essentially, if the matter were to be cured by direction it should have been a direction which said you should not treat the prosecution case as easier to accept because there has been no evidence led on the part of the defence and you should not draw any inference about the position of the accused because no evidence has been led on his behalf; in essence, the kind of directions that her Honour the Chief Justice considered ought to have been given.

HEYDON J:   Was that asked for?

MR McLOUGHLIN:   No, what was asked for was the discharge of the jury for the very reasons that I have put forward, and in our submission, in the circumstances where the discharge of the jury application was refused it is understandable that counsel then did not go further and ask for a different direction.  I should also say that if our contention is correct then what your Honour Justice Hayne, Justice Gaudron and Justice Callinan said in Dyers about how a jury should be directed was not sufficient to all cases, remembering, of course, that Dyers was not a case where the Court was asked to consider what direction should be given in that context.

We submit that the reason why this case raises a point which is not merely confined to its own facts but is of general application is because of the way in which a direction merely not to speculate will not deal with the questions necessarily which arise in the minds of a jury and as they arose in the mind of this jury.

HAYNE J:   Does it not come to this?  Either there was such a high degree of necessity as to require discharge; that is to say, it was evident that the jury was off the rails and could not be put back on.

MR McLOUGHLIN:   Yes.

HAYNE J:   Or all that the jury needed to be told was decide the case on the evidence, do not speculate.  You are seeking to peg out a middle ground where there is not such a high degree of necessity as to require discharge.  I recognise that is one of the aspects you want to agitate, but the middle ground is not such a high degree of necessity as to require discharge, but somehow the judge has to say more to the jury than decide the case on the evidence and only the evidence you have heard, do not speculate.  What more can a judge say?

MR McLOUGHLIN:   Well, I think what we submit is what her Honour Chief Justice Warren said and what I have tried to articulate in my submissions earlier, that is there had to be a specific direction telling the jury not to draw any inference from the absence of evidence on the part of the defence.  If I can just answer the question about what was sought by trial counsel?  Arguably the direction which was given by her Honour was consistent with what this Court said in Dyers, so that counsel could be forgiven for not challenging that direction in those circumstances. 

The essence of this application is that it is appropriate for this Court to consider whether on the issue of what direction should be given Dyers went far enough.  If I can ask your Honours to turn to page 212 of the application book?  The actual question is set out there.  It is significant, in our submission, that the way in which the question was framed:

We are aware that there is no onus on the accused to prove his innocence –

Again, like the absence of character evidence, what is absent from that question is an expression by the jury of awareness that there is no obligation on the part of the accused to call evidence.  That is the key point at which the criminal law parts ways from Jones v Dunkel, and that was the matter which had to be spelt out to the jury in this case, and the direction that they were given was not a direction which expressly forbade them from drawing an inference from the fact that the accused was a policeman with 14 years’ service and there was nobody there to speak of his good character.

We submit it was clear from the progress of the trial, the point at which this question was asked, the precise wording of the question, that the jury had seen that point, and if they were not to be discharged then they had to be in trust of the jury in the way the Court said in Dupas juries ought to be trusted; they had to be expressly directed not to apply Jones v Dunkel reasoning to the question which faced them, which was a very finely balanced one.  Remembering also that as Justice McHugh maintained in RPS and in Azzopardi and in Dyers, this kind of Jones v Dunkel reasoning is perfect common sense the way one would naturally think, and if that is correct ‑ ‑ ‑

HEYDON J:   Which it is not, according to the majority in those cases.

MR McLOUGHLIN:   Well, I am not sure that the majority said that it was not common sense, but the majority said that if one applied the proper principles of criminal law one should not reason that way, which is a different thing.  If Justice McHugh was correct in his assessment of how people think at least, then clearly it is not simply enough to say “don’t mention the war”.  The jury was onto the point and if they were not to be discharged – and there are arguments about why as a matter of principle if this kind of question continues to be asked you cannot simply keep discharging juries – then there has to be a direction which is given to a jury which focuses them properly upon the question that they need to ask themselves and the paths of reasoning that they must not follow.  Those are the submissions, your Honours.

HAYNE J:   Yes, thank you very much, Mr McLoughlin.  We need not trouble you, Mr Gyorffy.

We are not persuaded that any error has been demonstrated in the course taken by the trial judge in this matter.  Special leave to appeal is refused.

MR McLOUGHLIN:   May it please the Court.

MR GYORFFY:   May it please the Court.

HAYNE J:   The Court will adjourn to reconstitute.

AT 11.57 AM THE MATTER WAS CONCLUDED