Ramey v The Queen

[1994] HCATrans 62

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S18 of 1994

B e t w e e n -

RICHARD RAMEY

Applicant

and

THE QUEEN

Respondent

Application for special leave
  to appeal

BRENNAN J
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 11.26 AM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC:   May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the applicant.  (instructed by T. Murphy, General Manager, Legal Services, Legal Aid Commission of New South Wales)

MR P.C. BANNON, QC:  If the Court pleases, I appear with my learned friend, MR J.P. BOOTH, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR NORRISH:   If Your Honours please, this is another matter where an enlargement of time or an order for an enlargement of time is required.

BRENNAN J:   What do you say about it, Mr Bannon?

MR BANNON:   No, it is not opposed, Your Honour.

BRENNAN J:   The time will be extended, Mr Norrish.

MR NORRISH:   Yes, thank you, Your Honours. If it please the Court, this application raises matters of importance warranting the grant of special leave in what we would respectfully submit are three areas.  Firstly, whether a direction of the type disapproved in Robinson v The Queen and Stafford v The Queen is a fundamental error such as to preclude application of the proviso.  Secondly, what is a fundamental error as referred to by the majority of this Court in Wilde v The Queen?   Thirdly, whether this Court should resolve any conflict in the judgments between the majority in Glennon v The Queen and the minority, in that case, as to what is a fundamental error such as to preclude the application of the proviso.

In this matter the Court of Criminal Appeal held that the direction complained of ought not to be given and the trial judge was in error and, we would respectfully submit, there can be no doubt, having regard to what this Court said in Robinson and later in Stafford that no direction should be given that asks the jury to assess the evidence by reference to the interest of the relevant witness to the outcome of the proceedings.

BRENNAN J:   But, it is a real question, is it not, whether there was any real divergence from what Robinson requires in this case?

MR NORRISH:   I am sorry, Your Honour, I did not quite hear.

BRENNAN J:   It would be a question, would it not, though I say so with respect to the Court of Criminal Appeal, whether there was any real divergence from the requirement of Robinson in this case?

MR NORRISH:   Your Honours, what happened in this case was that - as I understand I was not counsel at the trial - counsel put a submission to the jury that the complainant had a motive to lie or a reason not to tell the truth because of the embarrassment of the circumstances in which she found herself in other matters.  The Court of Criminal Appeal thought it was of some significance that the balance in that ought to be addressed because the Crown did not have a right of reply to refer to the accused’s own statement, and direct the accused’s interests directly to the outcome of the case, that is, that he had the chance of an acquittal to gain.

Now, firstly, apart from drawing the jury’s attention to the outcome of the case which was prohibited, in our submission, by the decision of this Court in Robinson and in Stafford, His Honour raised an issue that had never been raised on behalf of the applicant as a submission to doubt the evidence of the complainant and, we submit, that ‑ ‑ ‑

DAWSON J:   Just let me get it right, Mr Norrish.  Someone, other than the trial judge, raised the question of the accused’s motive?

MR NORRISH:   No, the counsel for the applicant, as I understand it, put a submission to the jury that the complainant may have had a motive to lie about the nature of the sexual contact with the applicant.

DAWSON J:   Due to embarrassment or whatever.

MR NORRISH:   Because of embarrassment of the circumstances in which she found herself.  It was not put as a matter that related to the outcome of the case.  It was the trial judge that introduced the notion of the outcome of the case being a matter that the jury may wish to take into account in assessing the accused’s unsworn statement.

DAWSON J:   Perhaps he should not have said that, perhaps it does not matter, but in the end that particular passage was rather in favour of your client than against him, is it not?

MR NORRISH:   Well, I would not have thought so, Your Honour.

DAWSON J:   It rather emphasises the complainant’s possible motives rather than the question of your client’s desire to obtain an acquittal.

MR NORRISH:   With respect, for a start it introduced something that was not before the jury as part of the submissions in the case.  Secondly, I would respectfully submit, it was not a matter favourable to the applicant.  Apart from introducing the applicant’s interest in the outcome of the case it was said, by the Court of Criminal Appeal, to be a case of redressing the balance in favour of the Crown arising from submissions that had been put on behalf of the applicant by his counsel that the Crown could not reply to.

DAWSON J:   Perhaps it depends how you read it.

MR NORRISH:   Your Honours, one of the features of this matter to take into account is this, that the credibility of the applicant, of course, was critical.  This was a complainant for which there was support for her account because she was seen to be distressed, she was injured, and she had been heard to cry out and say certain words by a neighbour.  Now, the applicant’s account, in his unsworn statement, which had not been given to the police, and it is true that he told lies to the police, but the applicant’s account explained or was capable of explaining the three features of the evidence that supported the complainant’s version of events; that is, her distress, her injuries, and the sounds she made and the words she cried out which were overheard by the neighbour.

Now, the problem for the applicant was, and it is a traditional direction in summings up in respect of unsworn statements in this case, at page 26 of the application book, the trial judge had directed the jury that in relation to the unsworn statement:

It was not evidence in the sense of evidence.....given on oath, it was not subject to cross‑examination, but the law requires you to regard it as being a possible version of events and you give that statement such weight as you think it is entitled to in the light of what you believe is established by the other material before you.

Now, that is a traditional direction given in relation to unsworn statements, but if one were to take that proper direction in conjunction with the way in which His Honour dealt with the submission that had been made on behalf of the applicant by his counsel by reference to the interest that the applicant had in the outcome, that is, by gaining an acquittal, even in the way in which His Honour left it to the jury, that could not be regarded as being of any assistance to an assessment of the applicant’s credibility in the course of determining whether the applicant was guilty of the crimes.

The gravamen of our application as it be relevant to the special leave points is that in applying the proviso the Court of Criminal Appeal relied upon what, we would respectfully submit, are four considerations that were really inappropriate, and they are set out at page 47 of the application book.  Firstly, the Court of Criminal Appeal took into account that the direction given was said to be, and I quote, a:

balancing of submissions advanced on behalf of the appellant.....to consider the motives of the complainant for maintaining a lie.

Now, in our submission, that matter was not relevant to a consideration as to whether the proviso ought to have been applied.  The matter could have been dealt with by the trial judge, that is, to redress the balance, without turning the jury’s attention to the outcome of the case which was prohibited by what this Court has said in Robinson and Stafford. 

The applicant’s counsel, in any event, had not raised the issue of the outcome of the case by criticism of the complainant’s evidence, and the motive of the prosecution witness not to tell the truth obviously would be relevant to the issue of whether the guilt of the applicant had been established beyond reasonable doubt and, of course, in Robinson v The Queen, in the passage that it is cited in the application book, that this Court said quite clearly the interest of a witness, in giving evidence, can be brought to the jury’s attention.  The vice is drawing the jury’s attention of the relationship of an interest of a witness in giving evidence to the outcome of the case, and that was reaffirmed in Staffford.

The second matter that the Court of Criminal Appeal relied upon in applying the proviso was the passage taken from the unreported judgment of the Court of Criminal Appeal in Reg v Reeves, and that is set out in the application book at line 15 of page 47.  In that case the Court of Criminal Appeal whilst conceding the direction was wrong, in our submission, sought to qualify what the High Court said on the basis that it mattered not because it was:

a statement of the obvious -

to quote the Chief Justice in Reeves, and that it was -

hard to imagine that juries, in assessing the weight they give to the unsworn statement of an accused person, are not mindful of where that person’s interests lie.”

Now, in our submission, the jury is required to be told that the assessment of evidence is undertaken in circumstances where the accused is presumed to be innocent and the Crown bears the burden of proof.  There is no justification for a direction - or a misdirection, I should say - of this type by assuming that the misdirection merely states factors which the jury might be mindful of as a matter of common sense.  In effect, what was stated by the Chief Justice in the decision of Reg v Reeves relied upon by Justice Grove in this matter undermines the principle enunciated in Robinson v The Queen.

The third matter that the court relied upon was that the Crown case had particular strength.  We respectfully submit that the misdirection was a fundamental error such as was described by this Court in Wilde v The Queen and again in Glennon v The Queen.  Now, if it was a fundamental misdirection then the strength of the Crown case is irrelevant, and the proviso is precluded.  In any event, the problem in this matter is that in determining to apply the proviso the court did not address its mind to the issue of whether the misdirection was a fundamental error or, if it was not a fundamental error, whether by reason of the misdirection the applicant lost an opportunity to be acquitted, if I could paraphrase the statement of principles set out in Mraz.  Our submission, of course, is that it was a misdirection of some considerable significance and that it was a fundamental error, and if it was not a fundamental error than the court was required to consider whether, because of the misdirection, the applicant lost a chance of acquittal. 

The last matter the court relied upon in applying the proviso was this, and it appears at line 28, page 47 of the application book:  Justice Groves said that having regard to the untruthful versions that the applicant gave to the police:

It would be hardly surprising if the jury gave no credit to a third story advanced by the -

applicant.  In our submission this observation by the court begged the question as to the effect the misdirection may have had upon the applicant’s statement.  We submit that the misdirection had the vice of detracting from the credibility of the applicant’s account, and therefore to suggest it might “be hardly surprising if the jury gave no credit to the third story advanced by the” applicant ignored the effect that the jury’s assessment of the applicant’s statement that the misdirection complained of may have had.

So, in applying the proviso the Court of Criminal Appeal did not consider whether the misdirection was a fundamental misdirection or if it was not a fundamental misdirection did not consider whether as a consequence of the misdirection the applicant lost a chance of acquittal.  Now, it is our submission, that, as set out in the outline of argument, as a consequence of the misdirection the applicant did not receive a fair trial according to law, and the issue arises as to whether if that be the case that is a fundamental error such as was described by the majority in Wilde v The Queen and by the majority in Glennon v The Queen, and this matter, in our submission, raises for this Court’s consideration, as a matter warranting the grant of special leave, the question of whether the Court ought to examine the judgments of the majority and the minority in Glennon to determine whether there in fact is a distinction between what the majority describe as fundamental error, both in Wilde and in Glennon, and what the minority in Glennon describe as error precluding the application of the proviso where there has not been a fair trial according to law.  Our submission, in our written submissions, is that a fair trial ‑ ‑ ‑

BRENNAN J:   Nowhere has it been suggested that this problem of fundamental error or exclusion of the proviso follows automatically from any misdirection given by a trial judge.

MR NORRISH:   Not any misdirection, no, that is correct, Your Honour.

BRENNAN J:   No, so what you are endeavouring to do is to say that the words that were used in this direction in this case were such as to exclude the application of the proviso?

MR NORRISH:   That is correct.

BRENNAN J:   Well now, why should they, having regard to the whole of the context, in other words one looks at the facts which were dealt with in the summing up ‑ and I am dealing only with the summing up because we do not have the evidence here, but, the facts as revealed in the summing up and as canvassed by the Court of Criminal Appeal - and you say, “Well, certainly that passage appeared there, and you can take exception to it if you want to take a particularly strict view of what was said in Robinson,” but in the circumstances of this case there has been no real miscarriage of justice.  It was, if you like, something of a verbal slip on the part of the judge, it would have been better not said, but it was not a really important direction to the jury as to the manner in which they should evaluate evidence.

MR NORRISH:   Your Honour, if the direction was contrary to what this Court has said in Robinson and in Stafford, the issue that arises is such a misdirection of fundamental error ‑ ‑ ‑

BRENNAN J:   But, can you say that it is such a misdirection?  I mean, the real substance of what was said in those cases is that the jury cannot be left to understand that there is some trenching upon the presumption of innocence by reason of the interest that the accused has in securing an acquittal.

DAWSON J:   That they cannot evaluate his evidence in the light of that interest.

BRENNAN J:   Yes.

MR NORRISH:   That is right.  I would put it in another form, perhaps, saying that once the interests of the accused are linked to the outcome of the case then that has an adverse effect upon the presumption of innocence in the context of the jury’s deliberations.

BRENNAN J:   Well, it may, and that is where it seems that one needs, perhaps, to look at the entirety of the summing up and the facts to which it relates.

MR NORRISH:   Yes.

BRENNAN J:   If, looking at this summing up, one says, “Well, this jury was not really left in any misapprehension about the manner in which it should evaluate the evidence,” then it is clearly a case for the application of section 6(1).

MR NORRISH:   Yes.  Your Honours, may I very briefly take you to Robinson v The Queen, just for one moment, and take you to the particular passage, in fact, which is set out in the written submissions.  Robinson v The Queen, by our reference is reported at (1991) 102 ALR 493; it is also reported in the Australian Law Journal, (1991) 65 ALJR 644, the relevant passage in that report is at page 646; in the citation that we have relied upon, at page 495.

BRENNAN J:   Perhaps you can identify the passage in Robinson because we are working from the Australian Law Reports.

MR NORRISH:   I see, well then I will refer to that.  It is at the bottom of page 495, and I read that as an introduction, from line 48, thus:

“in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings.

And, this is the key passage -

But to direct a jury they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person.   Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence of the Crown.”

Now, in our submission, if one has regard to what His Honour said, and if I could just perhaps refer to the outline of argument, at paragraph 2.5 of our outline of submissions, application book pages 5 to 6, after drawing the jury’s attention to the reason for the applicant being dishonest:

obviously he has an acquittal to gain -

His Honour concluded -

Again I stress to you, I do not give you the answers to these questions, I do not suggest whether that is an argument which will find favour with you any more than the argument involving the accused does.  I simply remind you that these are questions for you to consider in the exercise of your function.

Now, that is a clear direction not an offhanded statement, with the greatest of respect, and it offends what was, in our submission, prohibited - if I could

use that expression - in the judgments of this Court in Robinson and Stafford and has the vice, as explained in Robinson, that inevitably the direction disadvantages the evidence of the accused, in this case the unsworn statement, and it strikes at the notion of a fair trial for an accused person, and that sort of brings us back to the essential essence of our special leave application, that this matter raises questions relating to whether a fair trial or a failure to provide a fair trial by such a misdirection precludes the application of a proviso because such a circumstance  is a fundamental error, as described by the majority in Wilde v The Queen and in Glennon v The Queen.  They are our submissions on behalf of the applicant.

BRENNAN J:   Yes, Mr Bannon.

MR BANNON:   If the Court pleases.  Your Honours, it is our submission that His Honour’s remarks cannot be construed as being a direction to the jury that they should evaluate the evidence on the basis of the interests of witness and the outcome of the case, that being the test laid down in Robinson.  In our submission, what His Honour said in this particular case does not come close to the vice which was the focus of the Court’s attention in Robinson where there was a straight out direction by the trial judge to evaluate the evidence on the basis of the interests of the parties.  That was not a direction which His Honour gave to the jury, in this case.

DAWSON J:   Perhaps it was not, but is it not chipping away a bit at what was said in Robinson?

MR BANNON:   It is our submission, Your Honour, that it falls a long way short of the vice which was addressed in Robinson.

McHUGH J:   But, it is amazing that despite Robinson we have had this series of cases from Queensland and New South Wales in which the best lip service seems to be paid to Robinson.  Again and again you get statements which, at first glance anyway, are in conflict with Robinson.  It may be it is a case where the Court has got to take the matter up again to emphasis once again that the fairness of the trial and the presumption of innocence is undermined if you start talking about the accused’s interests in the trial or that he has got something to gain from acquittal.  Of course he has got something to gain from acquittal, but it puts him a whole way behind in evaluating the evidence if you start on that premise.

MR BANNON:   Well, in this particular case, Your Honours, we would submit, that the context of His Honour’s remarks, of course, have to be considered, namely, in the line of a defence submission, apparently, that the complainant had an interest in the proceedings.  They are my words but, I would submit, it is a fair paraphrase of what His Honour was putting to the jury as reflecting what defence counsel had put to the jury, and considering the context and the far removal from the vice in Robinson, in this case, we would submit that it was open to the Court of Criminal Appeal to apply the proviso in this case. 

We would submit, Your Honours, that in fact His Honour Mr Justice Grove in delivering the main judgment for the Court of Criminal Appeal was correct when he said, in effect, that the remarks of the trial judge, in fact, did not breach what had been said in Robinson, but he went on to say that by virtue of what the Court of Criminal Appeal had said in Brotherton he considered that His Honour’s remarks were in breach more of Brotherton than in fact in Robinson.  Brotherton was a case of the local Court of Criminal Appeal which examined Robinson and followed, if you like, but in fact extended it, and it was really a case where the Court of Criminal Appeal in this particular case found that the error was not so much because of Robinson as such, but rather Robinson as analysed and sought to be applied in Brotherton. 

But our submission, Your Honours, is that the principles in relation to the application of the proviso are well settled by Wilde and Glennon, and what the Court is being asked to do in this application is really to substitute the view of the Court of Criminal Appeal as to the overall effect of His Honour’s summing up as to whether there had, in fact, been a miscarriage of justice.  Now, we would submit that it is stretching the point to invite Your Honours to conclude that what His Honour said in this particular case was a fundamental error.  We would submit it could not reasonably be said to come into that category.     The question then is whether  ‑ ‑ ‑

DAWSON J:   But, you would say, read as a whole, that statement really amounts to a discounting of the accused’s interest in the outcome.  It is easy enough to say that, the judge said, but look at the other side.

MR BANNON:   Yes.  I would not, quite candidly, I would not seek to base my argument particularly on adoption of what Your Honour says but if, in fact, that is the case, well obviously that has put strength to my submission that the Court of Criminal Appeal acted on a sound basis.

DAWSON J:   What, you say what I say is not right?

MR BANNON:   Not at all, Your Honour.

DAWSON J:   Well, what do you say?

MR BANNON:   I say it is open to that construction.

DAWSON J:   But you would not give it that construction?

MR BANNON:   I prefer to pass on it frankly, Your Honour.  It is a construction which is open, but that is a matter which, I think candidly, must be one which would have to be said to be assessed by the jury who was hearing those remarks in the context of the summing up as a whole.  My argument, Your Honour, is  that what His Honour said to the jury - - -

DAWSON J:   If it was open to the jury to conclude that His Honour was inviting them to evaluate the evidence of the accused in the light of his interest in the outcome, then if that was open to the jury, then there is a fundamental error.

MR BANNON:   Well, I am not submitting that that is what His Honour was saying, Your Honours, I am ‑ ‑ ‑

BRENNAN J:   Let me put the question to you quite correctly.  The proposition in Robinson is that the jury is not to be directed that they should evaluate evidence on a basis of the interests of the accused in the outcome of the case.  Now, do you say that direction was given or do you say that was not the direction given?

MR BANNON:   I say that was not the direction given, Your Honour.

DAWSON J:   What do you say the effect of the direction was?

MR BANNON:   It was a remark apparently designed to put into balance a submission which had been made by defence counsel, and that is all.

DAWSON J:   How did it put it into balance?

MR BANNON:   By balancing the position of the complainant which was being, apparently, criticised by the defence counsel.

DAWSON J:   By saying, “The complainant had an interest in the outcome and so does the accused, and you should evaluate the evidence in the light of those considerations”?

MR BANNON:   We did not go so far as the latter part of Your Honour’s observation, in my submission.

DAWSON J:   Why not?  On the argument you are putting, why not?  It would not have balanced if it did not.

MR BANNON:   It is my submission that he did not go so far as to invite the jury in terms of evaluating the evidence in such a way it breached the principle laid down in Robinson.  It was a remark ‑ ‑ ‑

DAWSON J:   It seems to me your submission is getting very close to that.

MR BANNON:   It is my submission, Your Honour, that what His Honour said was more of a remark or an observation, if you like, rather than a direction of the type which is normally understood when the word “direction” is used, and is of the type which was addressed in Robinson.  It should not have been made but, as I say, it was more in the terms of an observation and, assessed in the terms of the context in which it was made, it was not such a case which

would have precluded the court from properly applying the proviso.  They are my submissions, Your Honours.

BRENNAN J:   Thank you.

MR BANNON:   Before I leave the matter, if I might Your Honours, if I could just invite Your Honours’ attention to application book page 6.  One of the matters which the trial judge in his charge to the jury, at line 20, did remind the jury:

that these are questions for you to consider in the exercise of your function.

That is a general summary, if you like, of his overall directions to the jury that the evaluation of the evidence of the witnesses was for them.  If Your Honours please.

BRENNAN J:   Yes, Mr Norrish, what do you have to say in reply?

MR NORRISH:   Your Honours, just two matters.  Firstly, in relation to my learned friend’s submissions concerning the effect of Reg v Brotherton, which is referred to in our written submissions, the relevant passage in Brotherton, (1993) 29 NSWLR 95, appears after consideration of Robinsonv The Queen at page 98, at the very last line of page 98 to paragraph B of page 99. I will not read that passage to Your Honours but, we would respectfully submit that what Justice Hunt said in Brotherton v The Queen is no extension of the principle in Robinson and, certainly, when one considers what he said in Brotherton to what this Court said in Stafford v The Queen, there can be no doubt that the ratio of the decision in Robinson is to the effect that linking the evidence or the purpose to be served by the evidence to the outcome of the proceedings is the vice and we respectfully submit that that is what was done in this particular matter, hence the error in applying the proviso.

The other matter we put to the Court in reply is that the matters raised by the Crown, in our submission, support the need for this Court to reiterate or to remind courts exercising trial jurisdiction of the need to exercise care in directions given to juries in respect of purposes to be served by

witnesses and, particularly, the accused;  and, to remind courts of exercising trial jurisdiction and function of what this Court has said in Robinsonv The Queen and Stafford v The Queen.  They are our submissions in reply.

BRENNAN J:   Thank you, Mr Norrish.  The Court will adjourn briefly in order to consider the course it will take in this matter.

AT 11.58 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.13 PM:

BRENNAN J:   There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson v The Queen (1991) 65 ALJR 644, 102 ALR 493. It is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused’s interest in the outcome of the case. That said, having examined the terms of the summing up challenged in this case, we do not think that the judge’s language raises the problem with sufficient clarity to make it a suitable vehicle for reaffirming the rigour of the principle established by the judgment in Robinson v The Queen.  Accordingly special leave will be refused.

AT 12.14 AM THE MATTER WAS ADJOURNED SINE DIE