Read v The Queen

[1993] HCATrans 376

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H7 of 1993

B e t w e e n -

MARK BRANDON READ

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J TOOHEY J GAUDRON J

Read 1 9/12/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 9 DECEMBER 1993, AT 10.55 AM

Copyright in the High Court of Australia

MR D.J. PORTER:  May it please the Court, I appear for the

applicant. (instructed by A. Betts)

MR D.J. BUGG:  If the Court pleases, I appear with my

learned friend, MS C.J. GEASON, for the respondent.

(instructed by Director of Public Prosecutions,

(Tasmania))

DAWSON J: Thank you. Mr Porter?

MR PORTER:  If it please the Court, the disposition of the

applicant's appeal by the Tasmanian Court of

Criminal Appeal raise two points, or at least general points, which, in my submission, warrant

the attention of this Court. Those two points

relate to questions of majority verdicts and the

application of the proviso and, as the outline of

submissions suggests, those two general points have

discrete points within them.

The points raised, I submit, are of

fundamental importance to the administration of

criminal justice in this country, given that

majority verdicts exist not only in Tasmania, but

in South Australia, Western Australia and the

Northern Territory and, of course, the proviso

exists in all jurisdictions. As far as majority

verdicts are concerned, the minimum time before

which a jury may return a majority verdict differs

from jurisdiction to jurisdiction, ranging from two

hours in Tasmania to six in the Northern Territory.

GAUDRON J: That does not arise though, does it, in this

case, any question of minimum time?

MR PORTER: No, it does not, Your Honour. It perhaps only

shows different approaches which may show that each

jurisdiction has some difficulty assessing what is

appropriate in each case.	The submissions disclose
that the applicant was convicted after somewhat

lengthy deliberations by the jury, given that it

was a single count and given that, in essence, it

was a conflict between the complainant and an eye
witness on the one hand and the accused on the

other. There was a body of evidence which, in

general terms, corroborated the complainant's story

as supported by the witness, but in simple terms it

was a contest between the complainant, one witness

and the applicant. Notwithstanding that, there was

a deliberation of some 16 hours.

DAWSON J:	What do you ask us to draw from that fact?
MR PORTER:	I am sorry, Your Honour.

Read 2 9/12/93

DAWSON J:  What inference do you ask us to draw from that

fact?

MR PORTER: Simply that I do not ask this Court to draw any

inference therefrom, but it is a case in which I

will be submitting, in the context of the point as

to majority verdicts, that the trial judge ought to

have taken more care, and that is the principle at

stake, that the trial judge, when dealing with

majority verdicts ought to exercise greater

vigilance in relation to the deliberations of the

jury, given as - - -

GAUDRON J:  What does that mean? Does that mean the trial

judge should have given a direction?

MR PORTER:	Yes.
GAUDRON J:	Does it mean any more or any less than that?
MR PORTER:	It is the question of the principle which arises

from it. What we say is that because of this

honourable Court's observations in Cheatle,

particularly the -

GAUDRON J:  What is it, you say, that the trial judge did

that he should not have done, or should have done

that he did not do, in relation to the majority

verdict?

MR PORTER:  He should have, at the time at which they were

able to return a majority verdict, at the earliest,

or at the least when he ought to have seen that

they were having some difficulty - Your Honours may

have noted that the foreman expressed some

reservations about being locked up for the second

night - and it ought to have been clear to
His Honour that they were having some difficulty.

There were comments from the foreman that progress

was slow. There were a number of comments along

those lines. They expressed reservation about

being locked up for the second night. So, in my

submission, it ought to have been clear to

His Honour that they were having sufficient

difficulty warranting his intervention.	We say
his - - -

GAUDRON J:  What do you mean "warranting his intervention"?

What does that mean?

MR PORTER:  I was about to explain. What he ought to have

said to them is, in fact, what we say in the draft

notice of appeal, as set out in the submissions,

that he should have told them that they should not

compromise honestly held beliefs for the sake of
reaching agreement, and that they had the

option - - -

Read	9/12/93
GAUDRON J:	And did anybody ask him to say that?
MR PORTER:	Not specifically, no, Your Honour.
DAWSON J:	And he would have to say, at the same time, "On

the other hand, you must genuinely try to reach an

agreement and sometimes when you discuss matters

more fully, and have regard to the opinions of

others, you may change your view, and you are

entitled to do that".

MR PORTER:  Yes. What we say arises from Cheatle's case is

that, particularly the passage in which

Your Honours declare that a majority verdict, of

itself, may evidence - I am paraphrasing - a

reasonable doubt. And we say, because of that very

observation, that the trial judge, when dealing

with majority verdicts, must now adopt a different
position from that which pertains to unanimous

verdicts, because it is a problematical verdict.

That much is plain from Your Honour's statements in

Cheatle. They are conceptually different. Because

we are dealing with different concepts, different

principles apply. Because the majority verdict

suggests of its - - -

GAUDRON J:  Corne back to this fact. Majority verdicts are a

creature of statute. The statute does not say you

have got to do anything one way or the other in

this area, does it?

MR PORTER:  No, Your Honour.

GAUDRON J: Neither the prosecutor nor the accused asked the

trial judge to do?

MR PORTER:	No, Your Honour.
GAUDRON J:	It seems to me we are beating the air. I think

it must be a matter for the trial judge, whether,

in the circumstances, it is appropriate to do

something or not to do something, and not only did

nobody ask, but there is material in the

application book to suggest that that was

deliberately so.

MR PORTER: There certainly was a discussion about it, but I

do not advance any factual argument to the contrary

of what Your Honour says, and I tend not to

substantially disagree with a matter of principle

concerning it must be a matter for the judge in

each case, certainly each case throws up its own

particular circumstances. The point we make here

is that there ought to be, as a matter of
principle, a rule that a trial judge must treat

differently the situation where the jury's

Read 4 9/12/93

deliberations, when a majority verdict of

conviction may be returned, traditionally -

TOOHEY J:  Do you mean that after a particular time,

Mr Porter, the trial judge should intervene, or on

what foundation do you suggest the trial judge

should step in?

MR PORTER: 

The section, Your Honour - and these sections

are available to Your Honours - the Tasmanian Jury
Act, section 48(2), provides that:

Subject to this section, if, in any

criminal proceedings, a jury has remained in

deliberation for the necessary period without

reaching a unanimous decision as to their

verdict, but 10 of them have agreed as to a
verdict, the decision of those 10 jurors shall

be taken and entered -

The necessary period is two hours. Now, there is a

view that the judge should bring them back at the

expiration of two hours and make an inquiry to see

whether the verdict can then be returned. Now,

there is a South Australian decision which is

referred to in the Court of Criminal Appeal

judgment to say that is not correct as a matter of

principle, but here I would advance it as a

sensible proposition, that where the jury has

deliberated for the required period of time, for

the necessary period, once beyond that, the jury is trespassing into an area in which they can return a

verdict, a conviction, which is a conceptually

different verdict than a unanimous verdict,

carrying with it all the problems which

Your Honours outlined in Cheatle, and that at that

stage - that is my primary position - he ought to

direct them in accordance with those matters I have

set out in the submissions, that is -

GAUDRON J: At the end of the minimum period?

MR PORTER: That is my primary position.
GAUDRON J:	I can well understand that many defence counsel

would not want that to occur.

MR PORTER:  Or secondarily, at a time at which there is an

appearance of difficulty arising.

GAUDRON J: Again I can well understand that many defence

counsel may not want that to occur.

MR PORTER: With respect, Your Honour, I do not see that

that is an answer to the general proposition,

because surely that must be the subject of

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discussion and submissions, if appropriate, at the

time, But my - - -

GAUDRON J: That simply brings you back to the fact that

there can be no general rule. It must be a matter for determination in each particular case in which

the attitudes of counsel must be a relevant

consideration; a very relevant consideration.

MR PORTER:  The authorities which deal with this area,

particularly Gallagher, which I have put in the
submissions, that discloses what seems to be the
historic approach to trial judges' directions
relating to the exhortation and it is clear from

Gallagher, at least, that the exhortation to agree can be in quite strenuous terms, provided it is

balanced. Now, in relation to the point about

majority verdicts, I say there is a different

principle which should apply in relation to this

question of exhortation because of the dangers

involved with the conviction by majority verdict.

So, our point casts up doubt about the

applicability of the historically correct - if I

can use that expression - directions to juries in

this area of the exhortation, and the question of

whether they should be specifically told that they

have the option of not returning a verdict if they

could not agree.

Now, that was recognized as a sensible

proposition in Smith's case, although it did not

turn on it in the end. There was a complaint that

the judge should have so directed the jury. The court said, well, it did not matter in that case

because they would have known that. So, it seems

to suggest, certainly, that it is a sensible

proposition to adopt and what I submit is that in

principle it should be adopted in relation to

majority verdicts.

TOOHEY J:  The difficulty is, I think, that what you

describe as a principle you are really seeking to
convert into some sort of rule, are you not, that

imposes an obligation upon the judge to direct the

jury, whether invited to by counsel, or not?

MR PORTER:  Your Honour and I may have been using rule and

principle interchangeably, and for that I

apologize. Certainly a rule of - - -

TOOHEY J:  I was using the term really to distinguish some

broad principle to something in rather more

absolute terms, which seemed to be the way your

argument was going.

MR PORTER:  I am sorry if I misled Your Honour. What I

submit is at stake is the question of rules

Read 6 9/12/93

governing trial judge's directions in relation to

majority verdicts. Similarly to the type of rules

which this Court has dealt with in relation to

questions of uncorroborated confessions and the

like, it is a question of a rule of practice.	Now,
obviously there is room for discretion in each
case, but what we say is that we are now in the

situation of recognizing that a majority conviction

is a conceptually different beast and it therefore

flows, inevitably in my submission, that different

considerations apply - - -

DAWSON J:	It may be conceptually different, but that is not something which has to be raised with the jury and
would not aid their deliberations.
MR PORTER:	Not in so many words, Your Honour, but I return to my point that the authorities such as
Shoukatallie, the Court of Appeal in England case,
referred to in Gallagher and followed mostly in relation to majority verdicts.

DAWSON J: But what you are really asking, or would be

asking the Court to do, is to lay down a rule,

whether it be a practice or principle, that, at the

point where a majority verdict becomes available,

or at some point thereafter, the trial judge must

recall the jury and remind them of their oath, in

effect.

MR PORTER:  I do not step away from what Your Honour has

just said, in fact I take it a step further and it

is not just reminding them of their oath, which, I

think, His Honour did in this case in very broad

terms, but to go further and give specific

directions, as I have suggested in the outline,

because you end up in the situation of having a

small group of people who may dissent from the

greater majority - let us, for the sake of numbers,

call it 9:3 - you have a third person who is of

weaker disposition may be imposed upon by the

others, so that you have a verdict by oppression

and an expression - - -

DAWSON J:  When you say you take it further, you mean, he

should tell them that they should not comprise

beliefs honestly held for the sake of reaching

agreement, and then he would have to give the other

side of the coin to balance that.

MR PORTER: Yes.

DAWSON J: Saying that honest discussion may lead to a

change in view and agreement.

MR PORTER:	I certainly do not quarrel with that.
Read	9/12/93
DAWSON J:	In other words he would have to give the

exhortation which is given from time to time.

MR PORTER:  But the point where we end up is that it is - or

it should be - a far more balanced direction than

that which the authorities presently permit in

relation to unanimous verdicts.

DAWSON J: Well, that is your point; that the exhortation is

called for more strongly when a majority verdict is

available than when the verdict has to be

unanimous. That is what you are putting?

MR PORTER: Well, it depends on whether Your Honour and I

are talking about the same thing when we speak of

the exhortation. The exhortation - - -

DAWSON J:  You could not put just what you suggest in

paragraph 6 of your outline. You have to balance

it, as I think you recognize.

MR PORTER:  Yes.

DAWSON J: That is what I mean by the exhortation; a

balanced direction to the jury that - - -

MR PORTER:  I cannot sensibly advance the proposition that

they should not be given a balance, but my point

is, the rule should be that they are told in

balanced terms that they should not compromise

honestly held beliefs and that they do - - -

DAWSON J:  So that the point is that the availability of a

majority verdict makes it virtually a necessity

that an appropriate exhortation be given.

MR PORTER:	An appropriate exhortation.
DAWSON J:	So that is the point?

MR PORTER: Yes, Your Honour. Yes, I cannot put that any

principle at stake and it arises, I say, because of

better way, with respect, Your Honour. That is the

the conceptual difference that there must be

directions given because of that very problem that
arises.

Now, there is a question of the nature of the

before the Court of Criminal Appeal, that it was
unsafe, given the length of the deliberations.

conviction itself, which was a matter that was integrity of convictions by majority verdict in

certain circumstances. By that I mean the

circumstances of the length of the deliberation and

any comments passing between the jury foreman and

Read 8 9/12/93

the trial judge during the course of those

deliberations. I do not stay to - - -

GAUDRON J:  Is your point here that because it was a

majority verdict which was not reached for some
number of hours, it is necessarily unsafe and

unsatisfactory?

MR PORTER: In this case, I would submit that it was; that

the principle is that in some cases it may, of its

own, be unsafe and unsatisfactory because of the

circumstances in which it is given, and nothing

extraneous to that. As I say, it would flow from

the length of the jury's deliberations and anything

that passes between the jury foreman and - - -

GAUDRON J: This is curious, but why would a verdict that

took 15 and a half hours be unsafe and

unsatisfactory when if it only took half an hour it

would not be? One could look at it the other way

around and think that a verdict reached after half

an hour was the one that would be open to

criticism.

MR PORTER:	Much depends on the nature of the case and of the circumstances of the jury's deliberations,
Your Honour, and I appreciate the point in,
perhaps, that respect is a very general one. What
we say in this case is the point was a very simple
one.  The applicant was alleged to have shot the
complainant in the stomach.  The complainant gave
evidence as did an eye witness.  The applicant said
he was not there at the time. It was a simple point. It was not a complicated circumstantial
case. There were no complicated areas of expert
evidence to digest and consider. It was a very simple case and the fact that it took them 16 hours
in the circumstances, as apparent from the transcript, suggests that there are problems
attached to it, and I say - - -

DAWSON J:  Problems. You could only speculate what the

problems were. You may have had a juror who said

he would not convict under any circumstances, which

is one of the reasons in support of majority

verdicts.

MR PORTER:  What I do say is that it throws up the principle

at stake, which is that in certain circumstances

convictions by majority verdict may be unsafe and

unsatisfactory by their very nature and the

circumstances in which they were given, extraneous

to any questions of trial judge's directions as to

the law to be applied or as to the evidence.

DAWSON J: But whatever one might think about majority

verdicts, you have them in Tasmania and -

Read 9 9/12/93

MR PORTER:	What I am trying to do, Your Honour, is to establish that because we have them there ought to
be certain rules which relate to them.
TOOHEY J:	How could you possibly determine this sort of question, Mr Porter, namely that a verdict ought to
be held unsafe or unsatisfactory by reason of the
length of time the jury took to consider its verdict?
MR PORTER:	It can be ascertained, in my submission,

Your Honour, sensibly by an appellate court by

reference to what material is available, that is,

looking at the case, the time they took and any, as

I say, evidence as to what difficulties the jury

appear to have been experiencing. There may be

some cases when it is simply not possible to divine

that at all. There may be some cases where it is

clearly apparent from what comes from the jury

foreman to the trial judge, given the nature of the

case, that it is a problematical verdict.

TOOHEY J: There are apparently five hours, or so, of video

evidence which the jury may have looked at,

presumably did look at; may have looked at, gone

back over - who knows? It seems to me an

impossible task which you ask of the Court.

MR PORTER: With respect, I disagree. In certain

circumstances - - -

TOOHEY J: That may be, but that does not really help.

MR PORTER:  I was just going on to say, I did not mean to be

flippant, Your Honour, my answer to that is, in

certain circumstances it can be established. In

this case, I say, it is established, because -

Your Honour raises the question of the video - the

video was - I assume Your Honour is talking about

the video at the casino which - - -

TOOHEY J: There were two sets of videos, were there not;

one of the -

MR PORTER: Yes. There was a police interview.

TOOHEY J:  One of the police interview and one of the

security.

MR PORTER:  The security video at the casino.

TOOHEY J: Yes.

MR PORTER: Neither, in my submission, contain anything that

ought to have delayed the jury any time at all and

such material was adequately summarized, not only

Read 10 9/12/93

by counsel, but by the trial judge. Again, it was

not complex.

TOOHEY J:  You may be entirely right, but how does that

help. It simply illustrates the area of

speculation into which you are asking the Court to

move in order to make this sort of determination.

MR PORTER:  I suppose, again without wishing to be flippant,

Your Honour, appellate courts are involved in speculation about the activities of juries quite

often, and I do not see that what I am advancing

here differs greatly from any other matter in

respect of which an appellate court is required to

look at what a jury may or may not have done. I

simply say that there may be circumstances in which

one can look at the verdict, given that it is a

majority verdict - I should say that all of this is

prefaced by this Court's remarks in Cheatle -

looking at a majority verdict, given its conceptual

nature, looking at it in the circumstances of the

way in which it was delivered, that is, any

material evident from discussions between the judge

and the foreman, and the nature of the case, and

come to the conclusion that, by itself, it is

unsafe and unsatisfactory. Now, that may be

advancing things a bit further than they presently

exist, but for that I do not apologize. I do not

say that it is an impossible task for an appellate

court to carry out.

If I can turn then to the second point, the

general point, and that is the application of the proviso. The Court of Criminal Appeal upheld, or

at least found that a ground of the applicant's

appeal had been made out in relation to the use

they may make of lies told both in and out of court

context, and in court, by the applicant. This

Court has very recently examined this area in the

matter of Edwards, which is a judgment delivered on

17 November 1993. I do not stay to examine that at

very special care must be given when directing all. Suffice it to say that it reinforces that	juries as to the use they can make of lies when
asserted as positive evidence, or as corroborative evidence - - -

GAUDRON J: But again you sought no redirection in this

matter, did you?

MR PORTER:	None was sought, Your Honour.
GAUDRON J:	And the direction you got was limited to the use

of lies in determining the credit, or certainly

that was the main focus of the direction, was it

not?

Read 11 9/12/93

MR PORTER:  In my submission the jury would have been left

in a confused state and I think so much was - - -

GAUDRON J:  I think that is often the case with respect to

directions about the use that can be made of

lies - - -

MR PORTER: Hopefully this Court has just clarified that,

Your Honour.

MR PORTER:  - - - but the direction you might have got - you

could well have got a much worse direction for your

client than you did, could you not? On the law as

explained in Edwards, you could have done a lot

worse than you did.

DAWSON J:  In other words, the lies not only went to credit,

but constituted an implied admission of guilt.

MR PORTER:  That was certainly the way the Crown case was

put, Your Honour, that the lies, both in court and out of court, did not simply go to the question of

credibility, they were positive evidence of guilt.

GAUDRON J:  And the trial judge stopped short of saying

that.

MR PORTER: If I can go back to Your Honour's question, it

may very well be that the effect of the direction

may have been favourable. It may not have been.

Again we are back in the area of speculation, with

respect, and as I say, all the authorities, and

culminating in Edwards, makes it particular plain

that very, very special care needs to be given when

dealing with this area. I say that the jury, at

best, would have been left in a confused state and

simply did not know what to do with it and may very

well have fallen into the trap of saying, "Well he

has lied, therefore he is guilty".

The first point which arises as to the

application of the proviso arises from two English

cases, Manning and Johnson, which are available to

Your Honours - - -

GAUDRON J:  What you have really got to deal with in this

area, Mr Porter, is it not, is whether it could be

said that there is a miscarriage of justice in

circumstances where you do not ask for a

redirection and where, if you had, you might have

got something much less favourable than you did?

Can that be said to amount to a miscarriage of justice at all?

MR PORTER: If I can take them two steps at a time -

GAUDRON J: Yes.

Read 12 9/12/93

MR PORTER:  In relation to the failure to seek a

redirection, I would submit that it falls within

one of the recognized categories that an appellate

court will interfere, none the less, where a

miscarriage of justice has been made out - - -

GAUDRON J:  Oh yes, in certain cases, in certain cases, but

not in every case.

MR PORTER:  Not in every case. I accept that, Your Honour.

GAUDRON J:  And one of the reasons for not interfering

usually - a most powerful reason for not

interfering usually - is that a correct direction

may have been less favourable than the one you got.

DAWSON J:  And those in the atmosphere of the trial are best

able to judge that and if counsel for the accused
chooses not to seek a redirection, then it would

seem likely that she did not wish there to be one.

MR PORTER:  I am conscious of the proposition Your Honour

puts. However, I do say that this is a case in

which - it is one of those cases about which we
were just speaking; that it does fall within that

category - - -

DAWSON J: Well, that is the point you make about that, yes.

MR PORTER:  - - - because it is of such a critical nature

that - - -

DAWSON J:  Now you were going to go to the question of the proviso - sorry, yes?

MR PORTER: Could I just, with respect, I had not finished

answering Justice Gaudron's question. The question

is, certainly they may have ended up in a more

favourable position, but on the other hand they may not have. We just do not know on that, and that is

my simple point in relation to that question.	If I
can take Your Honours firstly to -

DAWSON J: Without going to the cases; what is the point you

extract from them?

MR PORTER:  Thank you. The Court of Appeal in England, in

the two cases referred to, see it as a matter of
principle that the proviso ought not to be applied
where there is conviction - when you get a ground
of appeal made out, the proviso ought not to be

applied where the conviction follows a hung jury at

an earlier trial.

DAWSON J:  I am sorry, I did not follow this, I did not

hear.

Read	13	9/12/93
MR PORTER:	Sorry.	The proviso ought not to be applied in

relation to an appeal point made out where that

conviction follows an earlier trial at which there

was no verdict delivered and the jury being

discharged without delivering a verdict. Now, in

Sullivan's case, the Court of Criminal Appeal said

to the extent that those cases sought to lay down
that proposition, they were wrong and just said, in

so far as the court had to lay down the principle

it was wrong.

There is, however, support in this country, in

South Australia, for the proposition and that is in

the case of Donald, which is referred to at the

bottom of paragraph 11 on page 3 of the

submissions, and the Court of Appeal there were

dealing with a situation of a trial judge's

discretion to stay a trial, rather than the

application of the proviso, and those two cases, or

at least Manning, 11 A Crim R 47, at page 50, was

referred to. Acting Chief Justice Mitchell said,

and it is about half-way down the page,

Your Honours - and Her Honour quarrelled with the

editor's note of Manning, so they do not agree with

the editor's interpretation of what was said.

It seems to me that the court said that it

could not be satisfied that there had been no

substantial miscarriage of justice because a

jury, presumably properly directed, had failed

to agree upon a verdict and the jury which had found the accused guilty had not been properly

directed. That seems to me to be a compelling

reason for not being satisfied that a

reasonable jury, properly directed, would

inevitably have convicted the accused.

That is to say, the proviso ought not to be

applied.

DAWSON J: That might be so in some circumstances; it might

not be in others. There is this desire to lay down

of having rules laid down about them. It is a	rigid rules about matters which are not susceptible	factor to be taken into account, it is true, and no
doubt the court -

MR PORTER:  I was going to say that our draft notice of

appeal does raise that the Court of Criminal Appeal

did not take it into account as a two-stage ground

of appeal, if you like. Firstly, that as a matter

of principle, it should not - - -

DAWSON J:	Was it put to them?
MR PORTER:	As I understand it, Your Honour, the question of the proviso was simply not raised at all by anybody

Read 14 9/12/93

during the appeal in the Court of Criminal Appeal.

It was simply not a matter that was discussed

either by Their Honours or by either counsel.

GAUDRON J: That seems a remarkable way to conduct a

criminal appeal, I must say.

MR PORTER:  Be that as it may, Your Honour, it was not

raised. We say, as a matter of principle, the

proviso ought not to have been applied following those cases. Certainly, it ought to have been a matter which was taken into account and was not so

taken into account. We say there is support for

the proposition in Australia.

There is contrary House of Lords authority in

the Commissioners of Customs and Excise v Harz,

(1967) 1 All ER 177, which I should, of course,

bring to Your Honours' attention in the context of

this argument. That is available to Your Honours

and the relevant passage is at the bottom of

page 185, over on to 186, and it is the speech of

Lord Morris, second paragraph - perhaps 186 is the

pertinent one.	I will not read that out in its
entirety.	I make the point, however, that

His Lordship said:

Why, it may be asked, should an application of

the proviso be ruled out automatically or

almost automatically - - -

DAWSON J:  He seems to make the point that I was making to

you, yes.

MR PORTER:  Yes, although His Lordship did say, of course,

it is a matter to be taken into account. None the

less, I maintain that the principle can be advanced

as a sound one. With respect, the House of Lords' approach and that approach of Your Honour may seem

to assume that the jury process is riddled with

perversities when often so much in the criminal law

proceeds on the opposite assumption.

Now, I put that argument of its own. As I

have indicated on the top of page 4 of the outline,

I say a fortiori this should apply where the

conviction appealed from is by a majority verdict,

and that arises from Cheatle's case, that it is a
discrete point again.

If I may pass on to the application of the proviso in so far as the test in Wilde is

concerned. The Court of Criminal Appeal disposed

of the matter at page 130, lines 21 and following,

and in simple terms - this was the judgment of

Mr Justice Zeeman in which both Their Honours,

Read 15 9/12/93

Mr Justice Wright and Mr Justice Crawford,

concurred, and His Honour simply said:

No substantial miscarriage of justice

occurred.

And then he explains that a little further and says:

I am satisfied that no substantial miscarriage

of justice has actually occurred by reason of

the misdirection.

That is the entirety of the Court of Criminal

Appeal's comments.

GAUDRON J: Except, if you take it back to the middle of

that paragraph:

A full direction in the form which the law requires might well have resulted in the appellant's case being looked at by the jury

in a less favourable light.

That is the reason for the finding, is it not, that

there was no substantial miscarriage of justice?

MR PORTER: Apparently so.

GAUDRON J: Yes.

MR PORTER:  But my point here is that the test in Wilde, as

I will - - -

GAUDRON J: But that is a very common approach to the

proviso, a well-established approach, is it not?

Certainly, one that is adopted in this Court very

frequently.

MR PORTER:  What I will be submitting, Your Honour, is that

the test in Wilde indicates that the nature of the

error should firstly be looked at as to whether it	is of a fundamental nature which, in that context,
has no relevance to the question of the - - -

GAUDRON J: Yes, but error of a fundamental nature, as

discussed in Wilde, is something altogether

different. It is where you can say it was so

fundamental that it is as if there were no trial at

all. It is not an error in running, as it were.

MR PORTER:  I confess that it, on one view, is just not

clear what Their Honours did in this case because
clearly, I would submit, the test in Wilde, is a

two-stage test. Your Honour Justice Dawson in the

case of S to which I have made reference makes that

certainly clear, that you look, firstly, at the

Read 16 9/12/93

nature of the error and then if need be go on to

consider the questions of the strength of the

prosecution case.

There is somewhat of a different comment of

His Honour Justice Deane in Van der Meer's case and

the cases to which I have made reference in the

written outline do show some difference in

approach. Now, I am conscious of the nature of

this application and do not want to take

Your Honours through all of those cases but in some

cases they talk about fundamental error; in most
cases they go straight to the question of whether the jury would inevitably have convicted or - - -

DAWSON J:  It may be obvious that there is no fundamental

error and you can go straight to the second matter.

MR PORTER:  Yes, in some cases, that may be correct,

Your Honour. But in some cases there must have

been some debate about whether it was of such a

nature and it seems to have been overlooked and

resort is had to the older formulated test without

apparent reference to the two-stage test that

Your Honour reiterated in the case of s.

DAWSON J: What are you saying here, that there was a

fundamental error and the court failed to turn its

attention to it?

MR PORTER:  Yes, that it was a fundamental error going to

the law to be applied by the jury. Apparently, the

Court of Criminal Appeal simply did not consider

it. As I say, I do not wish to stay to go through

those appellate decisions to which I have made

reference. They do evidence, in my submission, an

apparent conflict of approach.

I should say before I proceed further, our

point really is the application of the test posited

in Wilde in respect of which there are a number of

discrete points but it is really a revisiting of

Wilde which I say, in my respectful submission, is

called for.

The passage in the Court of Criminal Appeal

makes it unclear as to whether they were talking

about the jury inevitably have convicting or

whether it applies some lesser standard. Now, the

inevitable conviction, in my submission, is not the

same thing as losing a chance of acquittal fairly

open, because inevitable means inevitable, fairly

open imports with it a chance of acquittal.

TOOHEY J: But if you gets a direction which, though wrong

in law, is more favourable to you than a direction

which is in accord with the law, then it is not a

Read 17 9/12/93

very jarred step then to say that no substantial
miscarriage of justice has occurred. It is not
perhaps necessary to go through the formula of

saying the jury would inevitably have convicted

because that is bound up, surely, in the
proposition that they did convict and they

convicted notwithstanding that the accused received

a more favourable direction than he or she was

entitled to.

MR PORTER: That assumes, with respect, Your Honour, that

that is the way the jury in fact proceeded.	My
point throughout has been - - -

TOOHEY J:  No, it does not assume anything necessarily; it

just is looking at the whole notion of substantial

miscarriage of justice and applying it to the facts

of the case. The Court of Appeal does not have to

go through the stage of saying, well, it is a

fundamental error or it is not a fundamental error,

if it is apparent in one case that it is, or it is

apparent in the other case that it is not.

MR PORTER:  I understand Your Honour's point. My point

remains, with respect, that this is a fundamental

error because of the matters we have already

traversed - - -

TOOHEY J: That is taking us around. We are going out the

door we came in a while ago.

MR PORTER:  A little while ago, yes, and I certainly do not

want to continue doing that, Your Honour. If I

can answer Your Honour's question by saying it is

a fundamental error, we say, and they ought to

have considered it as such.

The two points that arise from the application

of the test are whether, when one applies the test,

one speaks of a hypothetical reasonably instructed

jury or the jury in the trial, about which there is

much debate and there seems to have been a conflict	of approach as to this. If Your Honours will bear
with me, firstly, in relation to the question of
the jury or a reasonably instructed jury, can I ask Your Honours to look at the case of Nifadopoulos v
Reg, (1988) 36 A Crim R -

DAWSON J:  Can you tell us what it says, what you get from

it?

MR PORTER:  There are comments by Acting Chief Justice Kirby

at page 144 in which he sets out passages from

Wilde and says:

Read 18 9/12/93

"Inevitable conviction", thrice repeated in

this passage ..... requires a most stringent

standard to be observed.

That is the question, whether really that is the

test, or whether it is the often more adopted test

of fair chance of acquittal.

DAWSON J: That is the point, is it? You say there is - - -

GAUDRON J: They are the opposite sides of the same coin,

are they not?

MR PORTER: With respect, no, Your Honour, because - - -

GAUDRON J: If conviction was inevitable, there was not a

fair chance of acquittal. If there was a chance of

acquittal reasonably open, then conviction was not

inevitable.

MR PORTER:  It is the emphasis on the words "fair chance", I

think, Your Honour, which is where we may part

company because a fair chance of acquittal imparts
a chance, some chance, of acquittal which is not

consistent with the adoption of the expression

"inevitable conviction".

DAWSON J: This is splitting hairs, is it not, Mr Porter?

GAUDRON J: And after all, what we are concerned with are

the words of the proviso itself, whether there was

a substantial miscarriage of justice. The matters
to which you refer are simply tests as to whether

or not that can be said. That is what we are

concerned with, a substantial miscarriage of

justice.

MR PORTER: But different considerations may apply. If I

can answer Your Honour's question about splitting

hairs, it is a matter which was picked up by the

Court of Criminal Appeal in New South Wales in

Haddad's case where Chief Justice Street, although

he calls it a slight element of uncertainty, goes

on to explain the conceptual differences between -

sorry, this was talking about the jury in the

trial or a reasonably hypothetically instructed

jury. He says there is a slight element of

uncertainty there and he goes on to explain the

differences by saying:

Taken at face value these would seem to

require a Court of Criminal Appeal to place aside entirely any factual ingredients that

must have been found proved by the jury in the

case -

Read 19 9/12/93

et cetera. So there is an expression of doubt

about the test in that area.

If I can move to the last point, and this arises principally from Your Honour

Justice Gaudron's judgment in Wilde, the first is

in relation to the question of credibility, the

question being whether it can properly be said the

proviso can be applied, that is whether it can

properly be said there is no substantial

miscarriage of justice where credibility is the

issue.	Of course, here credibility was very much
the issue.	Not only was it the issue, but the

error of law as it related to the jury's directions

related to that very question.

Now it arises, as I say, from Your Honour

Justice Gaudron's analysis in Wilde, picking up

from the passage in Driscoll's case, and

Your Honour also expressed similar doubts - - -

GAUDRON J: That was a minority view in Wilde, was it not?

MR PORTER:  I am coming to that. That is the very point,

Your Honour, because it may or may not be able to

stand with the majority view in Wilde, because

Wilde, as I understand it, with respect, the

majority test in Wilde assumes into it passages

from Driscoll. Now, Your Honour has drawn on that

passage from Driscoll and come to that conclusion
about cases where credibility is in issue.

It may be able to stand happily with the majority test, except in so far as it relates to an

exclusion from it. That is certainly what

Their Honours in Driscoll appear to have done, that

they said in Driscoll that they could not be

satisfied that no substantial miscarriage of

justice occurred because credibility was the issue

and they could not say that the error had not

affected the jury's verdict. So, in my submission,

what needs to be resolved is the proposition where

credibility is in issue, the error relates to the

law to be applied or the receipt of evidence, and

it can be said the error had no effect, whether the

proviso can be applied at all. So it involves

considerations of the extent to which that

proposition may conflict with the majority view,

and that is a matter which, in our submission, is

raised by this matter and, with respect, warrants

consideration by this Court.

The last point that does indeed arise from Your Honour's dissenting minority view, but with

respect it is a point which I simply say needs to be, with the greatest of respect, reconsidered by

this Court. I do not advance any further argument

Read 20 9/12/93

of that. I do not want to be taken as having

faintly put it.

They are my submissions, if the Court pleases.

DAWSON J:  We need not trouble you, Mr Bugg.

The matters raised in support of this

application do not demonstrate any error of

principle which would warrant the grant of special

leave and we are satisfied that there was no

substantial miscarriage of justice.

Special leave is accordingly refused.

AT 11.46 AM THE MATTER WAS ADJOURNED SINE DIE

Read 21 9/12/93