Reg v Dang

[2001] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S184 of 2000

B e t w e e n -

THE QUEEN

Applicant

and

TAM MINH DANG

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 AUGUST 2001, AT 11.59 AM

Copyright in the High Court of Australia

MR R.F. SUTHERLAND:   If your Honours please, I appear for the applicant.  (instructed by Commonwealth Director of Public Prosecutions)

MR R. HOENIG:   May it please the Court, I appear for the respondent.  (instructed by Patricia White & Associates)

McHUGH J:   Yes, Mr Sutherland.

MR SUTHERLAND:   Your Honours, we seek to make four broad points in relation to this application.  The first is touching upon the nature of the case.  I will go in some little detail to the proposition that it was not a tenuous case, as the presiding judge in the Court of Criminal Appeal described it, and as my learned friend relies upon in opposition to our application.  Secondly, it was indeed an appropriate case for a comment regarding the failure to explain the inferences which would otherwise have arisen in the trial.  Thirdly, the comment which the learned trial judge did make does not infringe section 20(2).  Lastly, this is an appropriate vehicle for this Court, notwithstanding the recent visitation in Azzopardi and Davis, to provide some guidance for what, if any, application the principles that flow from Weissensteiner, bearing in mind the introduction of the Evidence Act, have in future trials.

Your Honours, the first point which I want to touch on, despite it being purely factual, in order to overcome the suggestion that this is a tenuous case is to just touch for a few moments on ‑ ‑ ‑

McHUGH J:   I would not worry about that at this stage.  I would go to what you say are the substantive questions in the case.

MR SUTHERLAND:   If your Honour pleases.  We respectfully submit that the inferences, some of which I have articulated in the materials that have been sent to your Honours, were such that one would be and was entitled to rhetorically say to a jury, “What does one deduce from A, B, C, D and E?  Where a young man receives goods of the kind that had come in in December, what explanation might there be?”  The inferences which would flow in the Crown case were that it was a dummy run or that there may have been heroin in them.  They were commercially ‑ ‑ ‑

HAYNE J:   Assume all that to be so, why should we go back and look again, after RPS and Azzopardi, at this issue?

MR SUTHERLAND:   Because, your Honour, this Court has not dealt in a practical sense at all with a circumstantial evidence case following the introduction of section 20 of the Evidence Act.

McHUGH J:   But that is hardly our function, Mr Sutherland.  We are not here to give advice about how cases should be run.

MR SUTHERLAND:   No, your Honours, but your Honours are here to correct errors that arise in the Court of Criminal Appeal, and what we ‑ ‑ ‑

McHUGH J:   No, we are not, and that is a frequent misconception of this Court’s role.  This Court is not an error‑correcting court, or at all events that is not its primary role.

MR SUTHERLAND:   I was about to say, your Honour, that one needs to correct error in cases where the principle is of general application.  I accept that and I was not seeking to introduce a full stop to the proposition.  One understands that of course, but what the Commonwealth through me says is that there are cases that repeatedly arise in which they are purely circumstantial.  They are victimless in the sense that they are not rapes, they are not sexual assaults, they are not robberies where somebody comes along and identifies and says, “This is what happened”.  There is a matrix of circumstantial evidence from which it is sought to be deduced by way of inference that a conspiracy existed or that a person is somehow involved in an enterprise.  The question of what, if anything, a judge may say, given the empowering provision of section 20 – and we would respectfully adopt what has been said on a number of occasions about section 20 – where a judge is permitted to comment on the failure, subject to the prohibition that then follows, is, we respectfully submit, in a practical effect a matter of significant general importance which has not been resolved as a result of RPS, nor Azzopardi.  We identify two cases in relation to that.

So far as Weissensteiner itself was concerned – and, as the Chief Justice said in his dissenting judgment, it was the law between 1993 and 2000 so far as the application of general principle was concerned – the present case was one in which, on the then state of the perceived law, it was appropriate to give a direction, so it was given.  An appeal was launched as a result of RPS and argument raged as a result of the observations in RPS in this very case and the Court of Criminal Appeal of this State said, “As a result of what’s been said in RPS, this direction should not have been given”.  So the first starting point that we need to bring to invite the intervention of this Court is, we respectfully submit, that was wrong.  If one views the direction that was given in this case through the eyes of the majority in Azzopardi and Davis, then it was a direction, we say, which, accepting that it was a strong, compelling, purely circumstantial case, was one in which it was proper to make some comment.  So that the first hurdle, we submit, is overcome.

The second question that arises is, having decided, perhaps wrongly, that RPS applied to impugn the direction that the trial judge gave:  is it proper that it should simply stand and go back for another trial?  We respectfully say no, because the direction was a proper direction, it did not impinge section 20(2) and the matter of general application, one looks to see what effect has Azzopardi had, in the short time since it was articulated in this place, on the running and the interpretation of these types of comments – and I draw back from talking about directions; that is for another day – but directions or comments of the kind that occurred here.

The Commonwealth has had one matter come up since Azzopardi of what was a predominantly circumstantial case.  It was sent up to your Honours.  The argument there was disposed of on the basis that what had been said was a direction, not a comment, so that was the end of it.  That may be the subject in due course of argument on another day.  Significantly, Justice Meagher, who of course delivered the reasons which we seek to overturn in this particular case, said – and could I just very briefly, to the one paragraph, take your Honours to the matter of Chun Hing Law, New South Wales Court of Criminal Appeal, the predominant pages of the judgment of Justice Newman dealing with the question of comment versus direction.  It is the first case in the bundles that would have been sent up, I pray.  Justice Meagher said this:

I quite agree.  In my view, on the current state of the authorities –

and I remind your Honours this is after Azzopardi and Davis –

a trial judge in his summing-up to the jury would be well advised never to refer to the silence of the accused, much less give directions on the topic.

Without running off to the facts of that, it was an awesome circumstantial case which had a sequence of importations over a 12‑month period, I think from memory some seven in total, with a striking similarity between one and the other, four trips by the accused to Australia, no explanation not only in evidence but able to be raised in argument or submission to the jury.  There was simply no inference articulated in argument even before the trial judge or before the Court of Criminal Appeal as to what explanation a jury might make of those inferences.

In that case the jury sent a note to the trial judge asking for guidance as to what conclusion they should draw from the silence of the accused in relation to the inferences.  The impugned direction was late in the deliberations and, as Justice Newman said, because it was so late in the deliberations, he was not prepared to apply the proviso.  So that to the extent that one looks to see whether or not the proposition that Weissensteiner has some application, section 20 has moderated that.  Your Honour Justice Hayne and the others in the majority made some observations about the qualifications that needed to be made to the majority’s reasoning in Weissensteiner but what your Honours did not do was to say that it was wrong or that it had no application at all or that it would be confined peculiarly to its own facts.

McHUGH J:   But this Court cannot give any greater guidance to the application of the principles than appears in the joint judgment in Azzopardi and an earlier stage, RPS.  Every case will determine its own facts.

MR SUTHERLAND:   But where the Court can, in our respectful submission, is by dealing with a proper vehicle for approval, we would advocate, of directions of the very moderate and appropriate kind that Judge Shillington gave in this case if your Honours were so persuaded.

HAYNE J:   Directions or comment?

MR SUTHERLAND:   The reason I say “directions” is because the term “Weissensteiner direction” flowed from it.

HAYNE J:   I understand that but the distinction is one that needs to be borne steadily in mind.

MR SUTHERLAND:   Your Honour, I understand that.  Could I just make this observation without seeking to be contentious on that particular point, that ‑ ‑ ‑

HAYNE J:   That is what you are paid for.

MR SUTHERLAND:   Indeed.  Well, not overly contentious.  Could I just remind the Court that in Domican there was some discussion by this Court regarding directions of law and directions of fact.  I am sure it was not intended as a slip of the tongue and it may well be that there are distinctions that can be drawn when one devils through that argument.  Certainly we would respectfully submit that the term “directions” needs to be understood in the context in which it is used in certain circumstances.  I ought for present purposes to confine myself to a comment and to the use of the terminology comment, but the fact remains that this is a case in which a comment, we say, was properly justified.  It did not impugn section 20(2).

HAYNE J:   That highlights the difficulty, does it not?  If this is a matter for judicial comment at all, not direction, why should we now go back into the waters?  We have dealt with it twice.

MR SUTHERLAND:   Because the effect of what your Honours have done has led to Weissensteiner for practical purposes being dead.  The Court of Criminal Appeal have said a judge should say nothing and trial

judges are not going to say anything because the interpretation that has been put on the majority judgment in Weissensteiner by the Court of Criminal Appeal of this State is that silence is the preferred approach.

McHUGH J:   One of these days the Crown may be in a position where it gets a suitable case, but this was a case that was decided before Azzopardi, before RPS, and it is an application by the Crown for special leave to appeal in a criminal case.

MR SUTHERLAND:   Your Honour, that is the very reason, with the greatest respect, why it is the appropriate vehicle.  Following Azzopardi – and that is why we alluded to what the CCA have said in Law – there will be no directions and the Crown will not get a vehicle because the Crown cannot go up and say, “Look, there’s an error requiring appellate intervention because a judge didn’t make comment”.  What this vehicle provides peculiarly, because it does fall between the stools, as it were, is that, having given a proper direction – can I approach it this way.  If this case had been decided or was being run next week absent any contrary guidance, if this direction had been given and Azzopardi had been handed down, in our respectful submission, the Court of Criminal Appeal would not have touched it.

The fact is it arose before RPS but after Weissensteiner.  That is why the direction was given.  RPS wrongly caused the Court of Criminal Appeal to intervene and we say that this is the proper vehicle and the sort of vehicle which will not arise in the future because trial judges will not be prepared to make any comment as a result of the interpretation or the spin that has been put on the interpretation of Weissensteiner post-Azzopardi.  For those reasons we respectfully submit that it is a proper vehicle for the intervention of this Court.  Its application to trials of the kind that the Commonwealth run day in and day out is important and it would justify the appropriate review of the application in a practical sense of what the Court had to say in Azzopardi and Davis.  That is what we want to say about those aspects of it, may it please your Honours.

McHUGH J:   Yes, thank you, Mr Sutherland.  Yes, we need not hear you, Mr Hoenig.

This is an application for special leave to appeal by the Crown in a criminal case.  Given the recent decisions of this Court in Azzopardi v The Queen and Davis v The Queen (2001) 179 ALR 349, there is nothing sufficiently exceptional about the case that would warrant the grant of special leave to appeal to the Crown, and the application is dismissed.

AT 12.11 PM THE MATTER WAS CONCLUDED