Robinson v The Queen

[1991] HCATrans 226

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4

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• ,,.~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B19 of 1991

B e t w e e n -

ROBERT RAYMOND LLOYD ROBINSON

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

McHUGH J

Robinson(3) 1 27/8/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 27 AUGUST 1991, AT 10.19 AM

Copyright in the High Court of Australia

MR R.F. GREENWOOD, QC:  May it please the Court, I appear

for the appellant with my learned friend,

MR S.J. ODGERS. (instructed by R.F.G. Finlayson &

Associates)

The appellant, Robinson, was granted special

leave to appeal by this Court - - -

MASON CJ: Is the matter being heard ex parte?

MR GREENWOOD:	My apologies, Your Honour.
MR B.J. BUTLER:	May it please the Court, I appear for the

respondent with my learned friend, MR D.C. BOYLE.

(instructed by R.N. Miller, QC, Director of

Prosecutions (Queensland)

MASON CJ: Yes, Mr Greenwood.

MR GREENWOOD: Special leave having been granted on

24 June 1991 from the judgment of the Queensland

Court of Criminal Appeal of 6 October 1989, may it

please the Court, I refer to the outline of the

appellant's argument.

In relation to paragraph 1 of that outline, we

are seeking to maintain that what the learned trial

judge said in relation to the central question in

this appeal was in the nature of a direction and

not in the nature of an observation on the facts

or, in the alternative, would be taken to be so by

the jury. There is no doubt, in our submission,

that this is true of the question of the

application of what, in shorthand terms, can be

described as the interest test about which we are

heard to complain.

The respondent argues that the question of

whether the accused had the greatest interest was

left to the jury as a question of fact, but even if

the language can technically be so read in relation
to that issue the judge leaves the jury, we submit,

in no doubt as to what the answer to that question

is and, indeed, of course, there can only be one

answer to that.

MASON CJ:  Mr Greenwood, this seems to be an unusual

statement for a trial judge to make. Is there a

pattern of statements of this kind?

MR GREENWOOD:  We have made an effort to make inquiries in

the various jurisdictions. It is said to be

unheard of in the State of New South Wales. We are

uncertain as to the position in Victoria. Mention

of the interest of the parties is sometimes alluded

to, we are told, in South Australia, but

Robinson(3) 2 27/8/91

principally, it is a creation of the Queensland

courts at nisi prius.

MASON CJ: It is frequent in Queensland?

MR GREENWOOD:  It is in my experience, Your Honour, and I

was in practice in that State for some years.

MASON CJ: In criminal cases?

MR GREENWOOD:  In criminal cases but not in its full-blown

form - - -

MASON CJ:  As seen here.

MR GREENWOOD: - - - as appears here. The sort of direction

that is not uncommon to here is that, "In the

resolution of questions of credibility which is

peculiarly a matter for you, members of the jury,

you may take into account a number of things

including the demeanor of the witness, the

interests the particular witness might have in the

outcome of the proceedings and so forth; matters

of common sense that appeal to you to be

appropriate to take into account". That sort of

direction.

If left in that context in practice, in my

experience, it does not seem to create any

particular problems because counsel, in
anticipation of such directions, want, in that

State, to, as it were, cut the danger off at the

knees. The danger in that sort of context is not,

in our submission, of such a nature that would be

brought to Your Honours. But what we have in this

case is the consideration of this question of

interest in a full-blown form, to say the least.

So we say that it is material to be mindful of the language used in the summing up in so far as

any contention can be made that what was said on

this subject of the interest test could be merely

passing observation.

The learned trial judge starts to direct, we

say, the jury at page 3 of the appeal book with the

words:

Now, the Court -

he is moving into the area of how the jury should

approach its factual task, by using the language at

point 75 of page 3 of the appeal book -

expects and the community expects that you

will bring to bear upon the subjects which you

Robinson(3) 27/8/91

have to consider your common sense and your

world experience -

et cetera.	The second last line he uses this
language:

What you will be doing with the

evidence ..... is looking for what is often is

called credible evidence. Credible evidence

is evidence which decide is both honest and

reliable.

And further down:

but remember ..... you don't speculate as

distinct from drawing inferences -

What I am developing here is that this section of

the summing up is clearly directional. And that

directional nature continues at line 22 when he

comes to deal, for the first time, with what we say

is the objectionable and fatal flaw. He introduces

the paragraph:

Well, you may say, "How do you test the

credibility of a witness?"

And then he answers that hypothetical question in a

directional fashion:

There are a number of ways. Particularly, I

would suggest -

and I would suggest that nothing much can be made

out of the word "suggest", contrary to what I am

maintaining -

remember the witnesses as they gave their

evidence before you.

And then he outlines his three tests.

Did they impress you in standing up to cross

examination? Did they impress you, at least, as a person who is thing to tell the truth to

you? Those are two tests. Still on the

subject of witnessess, you might think that
some of them have an interest in the outcome

of this case. Indeed you might think that one

witness above all others has a greater
interest than all the others in the outcome of

the case. You might say, "Well, this witness

has a particular interest in the outcome of
his case.

Robinson(3) 27/8/91

His case. If there is any other doubt that he is

talking about the accused, the appellant, it

does not seem to be a real - - -

BRENNAN J: If there is any doubt, it is dispelled in the

next sentence.

MR GREENWOOD:  I was coming into the next sentence, yes:

"We should look at his or her evidence

closely, more closely than perhaps we would

look at others." That is a matter you have to

bear in mind when scrutinising a particular

witness's evidence.

You have to bear it in mind; it is directional:

Remember also that for some of the witnesses -

and he goes on to talk about members of the police

force, and being at ease in the witness box, but
the police did not have anything to do with the
question.

Just as back at page 3 there is directional material, the directional material continues, we

say, over page 4 and page 5, and indeed mid-page 5,

clearly directional:

Remember also that you do not have to accept

or reject in whole what a witness tells you.

Further down, of course, clearly directional on the

presumption of innocence.

We, of course, agree that the presumption of

innocence was alluded to in the last part of page 5

but, in effect, reading the summing up as a whole,

which we are happy to do, it is part and parcel of

the rebutting process of the presumption, according

to the directions given by the trial judge, that

the accused has the greatest interest which is, at

the outset, directly relevant to his credit.	And
that is one way of putting our fundamental proposition.

In relation then to paragraph 2 and, indeed, paragraph 3 of our submissions, we maintain that

the directions given amount to an invitation to

treat the evidence of the accused with a skeptical

or critical eye because it comes from him. He is

the person with the most interest and we say, ergo,

that follows.

BRENNAN J:	Now, say there was no direction at all and the jury went outside and said to themselves, "Well,
Robinson(3)	27/8/91

we've got to consider these two conflicting pieces

of evidence, his and hers. But, after all, we've

got to remember that he's on trial for this and

he's got a lot to lose". Is that a wrong approach?

Because if it is, they should be warned against it.

MR GREENWOOD: It is a dangerous approach. It is logically,

like a lot of things, the presumption as to the

natural consequences of one's acts - logical.	But
it is dangerous if pushed too far.	It is dangerous
and it is fatal if pushed too far.

BRENNAN J:  I can see the argument in terms of the flavour

that this gives to a summing up. In other words,

there is not a fair summing up at the end. But if

you are putting it in terms of a principle of law,

I would just like to understand what the principle

of law is.

MR GREENWOOD:  We say that as a matter of common sense and

logic the interest that a party has in being

accepted when he says something is so is relevant

but not to be taken as being a test when comparing

one body of evidence from the evidence of that

which comes from the interested party. I mean, it

would be silly for the jury to say the accused

person in this trial has got to be telling the

truth because he took the oath. It would be silly

for them to say in no circumstances would an accused person attempt to lie his way out of

something. That would be unreal. But where the

line is, we say, it is certainly short of what was

done here.

I find it very difficult to express it any

more satisfactorily than that.

MASON CJ:  Mr Greenwood, on the two points made in the first

paragraph of your outline of argument, does not the

passage at the top of page 6 constitute something

of an answer, perhaps a complete answer, to your

point (b) because there the trial judge makes a

perfectly correct statement in terms of the onus of

proof?

MR GREENWOOD:	Yes, he does.
MASON CJ:	So that, in terms of the onus of proof, the jury could be under no misapprehension at all. Now,
that may still leave you with a point about the fairness of the summing up, but what do you say
about what appears at the top of page 6 in terms of
the complaint you make in l(b)?

MR GREENWOOD: Well, simplistically, we say that the summing

up should be read as a whole and that despite the

impeccable nature of that language the way in which

Robinson(3) 6 27/8/91

the special interest point was put to the jury has

had a danger of eroding that direction and

nullifying it. We say that for a number of reasons

which will be developed, not the least of which is

that the whole of the case was left to them,

substantially, on the basis of the resolution of

the question of credibility and it was mentioned by
the trial judge in redirections; the very last

thing they heard, which I will come to in sequence.

We say that the principal objection, in

relation to paragraphs 2 and 3, is that the summing

up is fundamentally unfair and is erosive of the

presumption of innocence because the directions -

and we call them directions - complained of, when

read together and considered in the context of the

whole of the summing up are or would reasonably be

taken to be a clear invitation to consider the

accused as being in the nature of a second-class

witness. Credit depends, inter alia, on interest.

The accused has the greatest interest ergo as to

credit; he has that obstacle to overcome. We

maintain that, reading the summing up as a whole, it indeed puts him in the class of a second-class witness.

McHUGH J: There is something of a logical conundrum in

this. If the presumption of innocence means

anything then the accused's evidence is entitled to

be scrutinized less carefully than any other

witness in the case because there is no presumption

that any other witness is telling the truth but

there is supposed to be a presumption that he is

innocent of the charge which means that he did not

commit it.

MR GREENWOOD:  He did not do it, yes.

McHUGH J:  He did not do it. On the other hand one does

take into account a person's interest in the

outcome of proceedings and he does have the

greatest interest in the outcome.

MR GREENWOOD:	But it is dangerous, by such clear language as was used in this summing up, to clearly put him
in the mind of the jury as being the person who is
pushing the barrow up the hill and that is what has been done here.

As to paragraph 4, the proposition, I suppose,

is somewhat analogous to what was said by the

High Court in Stapleton which I am sorry is not on

the list and I only refer to it as being of perhaps

analogous interest. Stapleton v Reg, 86 CLR 358,

which is - what I mentioned in passing before - the

presumption to intend reasonable consequences. The

passage that is quoted in the later case of Parker

Robinson(3) 7 27/8/91

from Stapleton in rejecting Smith, the English line

of authority, is at page 365. I only just want to

touch on this. At the bottom of page 365 in the

joint judgments of the Chief Justice Sir Owen Dixon

and Justices Webb and Kitto, about eight or 10

lines from the bottom:

The introduction of the maxim or statement

that a man is presumed to intend the

reasonable consequences of his act is seldom helpful and always dangerous. For it either

does no more than state a self evident

proposition of fact -

and one can sympathize with the proposition of fact

that a person's interest in the outcome of

proceedings may very well be a factor -

or it produces an illegitimate transfer of the

burden of proof of a real issue of intent to

the person denying the allegation.

That is the view of that presumption, which was

later endorsed in Parker's case. As I say, it is

helpful, by some fairly tenuous analogy, but of

course, one of our problems, Your Honours, is -

although in one sense it is not a problem - that

there is just no authority, either direct or by way

of judicial comment, on the proposition which is
now before you that either of us has been able to
discover. We have provided a list of authorities

which deal with collateral matters such as

corroboration of accomplices and warnings in

various contexts, but none of them will be quoted

by me. They are merely provided as a number of

classes of cases which Your Honours will recognize

as being relevant to collateral issues.

TOOHEY J: There may be another way of looking at it,

Mr Greenwood, although I do not pretend to have

thought it through, but the trial starts with a

presumption of innocence, the Crown seeks to answer

that presumption by the evidence of witnesses, and

where that evidence essentially turns on a conflict

between complainant and accused, if the evidence of

the accused is put in some special category, in

that the jury is directed to look at it with

particular care and scrutiny, then it may be that,

in some way that I do not pretend to define at the

moment, the presumption of innocence has been

weakened.

MR GREENWOOD: 

Yes.

TOOHEY J: 

In other words, it may not go merely to the

broader notion of a fair trial but it may bear upon
the question of presumption of innocence.

Robinson(3)	8	27/8/91
MR GREENWOOD:	We say it does.	We say this does.

DEANE J:  What do you say is the relevance of the, on one

view, over-statement of the approach to be taken to

the complainant's evidence which appears at

page 24?

MR GREENWOOD:  I am sorry, I do not quite understand

Your Honour's question.

DEANE J: If you look at the bottom of page 24, His Honour

has, on one view of the law, given an unduly harsh

direction as to the approach to be taken to the

complainant's evidence.

MR GREENWOOD:  If they do not find corroboration, is the one

at the bottom of page 24.

DEANE J: Well, that is one way of reading it, but he says:

You must scrutinise her evidence closely. You

must be wary of acting on the uncorroborated

word ..... The reason for this, ladies and

gentlemen, is that historical experience has

suggested that a charge of rape is easily

made.

MR GREENWOOD:  But would not, with respect, what precedes

that make it tolerably clear that that approach is

being recommended as the appropriate approach if

they are left in a situation where they do not find

the corroboration? What precedes is:

I must tell you that while you may still act

on Miss Jeremijenko's evidence alone -

uncorroborated -

I must warn you.

DEANE J: Well, that is one approach. The other approach is

that a direction given in that form undermines the

reliability of the complainant's evidence,
regardless of corroboration, in explaining that the

evidence is essentially unreliable and therefore

needs corroboration.

MR GREENWOOD:  Yes, in that sense, but what has to be also

remembered in context is what appears further up

page 24 and to compare what appears further up page

24 with how he dealt with the accused, and he is

dealing with the complainant at approximately

point 4 at page 24:

You saw and heard the complainant give

evidence before you.	She was cross-examined
for quite a long time.	You have to decide

Robinson(3) 9 27/8/91

whether or not she is a credible witness.

There were some occasions when you may have

thought she was distressed.

Well, ladies and gentlemen, I suggest

that you do not look at her evidence in

isolation from the rest of the case.

In other words, it can be bolstered even though

they might take a certain view of her demeanor in

the witness box.

I suggest you consider her evidence along with

the other evidence that has been adduced

before you.

That is fair enough, but it is notable, is it not,

that unlike when he comes to deal with the accused,
there is no mention here in this context of how did

she stand up under cross-examination; was she

trying to tell the truth; and certainly there is no

mention of any interest in the outcome of the
proceedings; all of which embargoes or red lights
were collected together for the purposes of dealing

with what they make of the accused's evidence.

DEANE J:  I was not suggesting that it was conclusive, but I

mean, do we not have to approach this case on the

basis that, if you look at what was involved, all

that was involved was a contest between the

complainant's evidence and the accused's evidence.

Well now, in that context, a statement that the

accused had an interest and that his evidence

should be scrutinized carefully with that in mind,

must be viewed in the context of a statement that
the witness of the evidence of the complainant
effectively should not be accepted, unless it was
corroborated for the reason that historical

experience suggested that a charge of rape is

easily made, which I would have though was quite

contrary to the fact.

MR GREENWOOD:  We do not argue that it was not proper for

the jury to be asked to scrutinize the evidence of

the accused. We are happy for them to be invited

to scrutinize as hard as they like. That is the

first thing to be said about that.

The second thing to be said about it is that

the test of interest was used in the threshold sense of the test of credibility, not as being

later on, if you like, a reason for scrutiny, and

that might be a distinction without a difference,

but what we start with is this fundamental
proposition that in assessing the credibility of

the accused, look at demeanour and those other

things, but also look at interest and look at it

Robinson(3) 10 27/8/91

from the point of view of the greatest interest of

all.

McHUGH J: Rightly or wrongly, the law has traditionally

regarded complainants in sexual cases as suspect

witnesses. It may be said that these directions introduce another category of suspect witnesses,

namely, accused persons, because they - - -

MR GREENWOOD:  Accused of rape - - -

McHUGH J: Well, just accused persons generally - - -

MR GREENWOOD:	- - - of anything.
McHUGH J:	- - - because they have the greatest interest in the outcome of the case, therefore their evidence
is suspect. It should be scrutinized more
carefully than other witnesses.
MR GREENWOOD:	I could just finally comment that I cannot

find anything exceptional or unusual about what the

trial judge said in relation to the complainant's

evidence at the bottom of page 24 referred to by

Your Honour. It is not an unusual sort of pattern

of language to find.

BRENNAN J:  You refer to what His Honour said as a test, but

is that really the way in which it would be

understood by the jury, when one test is how do

they stand up to cross-examination? That is really

not so much a test to say, "That witness's evidence

is unreliable", it is really a matter of "What

weight do I give if he does not stand up? What

weight do I give in the light of the interest that

the witness has? What weight do I give in the

light of the other circumstances?"

MASON CJ:  The trouble is the trial judge referred to it as

a test, did he not?

MR GREENWOOD: That is what he did not say.

BRENNAN J: Yes, he did.

MR GREENWOOD:  We come now to the redirection, but before I

deal with that, the other mention of this matter

about which we take exception is in the summing up

at page 31 of the appeal book at line 43:

The defence case, you may think, centres

largely on the evidence of the accused man

given in the witness-box before you. You had

quite a good chance to assess him, as indeed

you had a good chance to assess the

complainant. Remember, one of the tests I

suggested you might apply to a witness when

Robinson(3) 11 27/8/91

considering that witness's credibility was

this -

not weight -

how did the witness stand up to

cross-examination? -

and this is the treatment he is giving the accused

as opposed to the - if I can use that slightly

slangish expression - treatment that he gave the

complainant in the passage we have just been

discussing.

Another test was did he or she impress you, at

least, as a person trying to tell the truth to

you? Another test was what interest does a

witness have in the outcome of a case? If you

thought a witness had a large interest in the

outcome you, as the judges of the facts, might

well conclude that you should scrutinise that

witness's evidence closely. You might think -

it is a matter solely for you - that the

accused had the greatest interest of all the

witnesses you saw and heard and that,

therefore, you should scrutinise his evidence

closely.

The effect of this language, we say, just

continues our principal submission that it is

placing him, in the eyes of the jury, as a second

class witness.

As for paragraph 5, and the claim by the

respondent that the redirection was a cure-all is,

in our submission, just not so. That redirection

appears at page 43 of the appeal book, and

immediately after it the jury retires at 12.32.	So
this is the last thing the jury hears from the
bench.

On Friday I told you in effect that one

of the tests you apply -

clearly directional -

in considering a witness was the interest the witness had in the outcome of the case, and I

think I suggested to you this morning you

might well conclude that the accused has the

greatest interest of all the witnesses. - no doubt about that.

I think I also said that you might think that

the greater the interest the more carefully

you should scrutinize the witness's evidence.

Robinson(3) 12 27/8/91

Again, no doubt about that.

You might well conclude, it is a matter for

you -

and this is where it leaves what follows as perhaps

an arguable question of fact for them and them

alone -

that the complainant also has an interest in

the outcome of this case. I didn't intend to

lead you to believe that you apply only the

interest in the outcome of the case test to

the accused only. You apply it to all the

witnesses if you believe that test is

applicable.

There are two things wrong with that. First of

all, the direction in relation to the so-called

test in relation to the accused has been

directional; secondly, he has been unequivocally

described as the person with the greatest interest,

whereas here the complainant, when he does come to

make some concession in this direction, is,

You might well conclude, it is a matter for

you -

in other words, a factual matter for you -

that the complainant also has an interest in

the outcome.

So if there is any doubt that the jury were

invited by the trial judge to treat questions of

credibility as between the appellant and the

complainant differently, to the detriment of the

appellant, then we say that the last thing the jury

heard dispells that doubt.

We maintain that there was a substantial risk at least that the jury were diverted into resolving

the issue before them in perhaps the following

manner: which of the two versions of what happened

in the motel room do we accept? This question

depends on credit. There is a vast difference

between them, the accused and the complainant, as

the judge has told us, one of them having the

greatest interest in the outcome of the

proceedings.

Therefore, in this state of balance we accept the complainant in preference. Arriving to that

proposition, then we can only have one verdict, and

you can, with respect to the respondent's

arguments, say that there were directions about

reasonable doubt until one is blue in the face.

Robinson(3) 13 27/8/91

But the inescapable logic is that that scenario

was, if not likely, at least distinctly possible.

DEANE J:  Mr Greenwood, why is not this point mentioned in

the judgment of the Court of Criminal Appeal?

MR GREENWOOD:	Because it was not argued, I am afraid.
DEANE J:	Was that disclosed to the Court that granted leave

to appeal to this Court?

MR GREENWOOD:  I made the inquiry by telephone myself

yesterday to contemplate the answer to

Your Honour's question and I did not appear on the

application and I have no knowledge so I cannot

help you.

I am informed by my learned junior that, to

his recollection, the question was not raised - the
question of whether it was raised before the CCA
was not raised on the application for special
leave.

The acceptance then, in this scenario that I am putting as a possibility within the jury room,

involves the application of this so-called test and
then the very real risk and possibility of a
virtual mechanicalistic acceptance of the

proposition that the complainant's evidence is to

be preferred. It is notable, of course, that

although they were directed that proof of ultimate

guilt was required beyond reasonable doubt, it was

never put that if they thought that the accused's

version might reasonably be open or true, they

should acquit. That just compounded the danger

into which the jury were, in our submission,

irrevocably led by the nature and the language of

the summing up.

I have mentioned that the list of authorities

is only of collateral interest. If Your Honours

want a summary of what those cases deal with, then

I can place that on the record if asked. Those,

with respect, are our submissions.

MASON CJ: Thank you, Mr Greenwood. Yes, Mr Butler?

MR BUTLER:  If it please Your Honours, we would hand up our

outline of submissions.

Your Honours, directing Your Honours to

point 2 of our outline, our submissions are that

the comment of the learned trial judge, which is
the subject of this appeal, developed from the
usual and necessary direction on the respective
functions of judge and jury. Those directions - my

learned friend has referred to some of these

Robinson(3) 14 27/8/91

passages - commence at page 1 of the appeal book

and continue on to page 2. They make it clear to

the jury the distinction between the role of the

trial judge and the role that the jury have, as it

was put, as judges of fact. That was reinforced at

page 3 of the appeal book at around about line 45

where the learned trial judge reminded the jury

that they were:

the judges of the facts.

He went on from there immediately to address their role in resolving issues of credibility of

evidence. He started at the bottom of page 3 by

suggesting to them that they apply their common

sense and then at line 20 on page 4 of the appeal

book we come to the passage where His Honour, first

of all, referred to as he put it:

How do you test the credibility of a witness?

There are a number of ways.

Our submission is that His Honour, in doing that,

was not giving a direction of law to the jury but

rather giving guidance to them as to how they

should exercise their function as the tribunal of

fact.

He made it clear that that is what he was

doing by the way in which he presented it to them.

He used the terms, "You may say", "I would

suggest", "You might think", on a number of

occasions. He put it this way, notwithstanding

that he used the term "test", at about line 35:

Still on the subject of witnesses, you might

think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a

greater interest than all the others in the

outcome of the case. You might say, "Well,

this witness has a particular interest in the
outcome of his case.	We should look at his or

her evidence closely, more closely than

perhaps we would look at others." That is a

matter you have to bear in mind when

scrutinising a particular witness's evidence. There was no suggestion in those comments that

His Honour was referring specifically to the

accused there. In fact he used the term -

We should look at his or her evidence -

He was leaving it to the jury as a matter for their

assessment, in my submission, that they might apply

this guidance in considering the evidence of

Robinson(3) 15 27/8/91

witnesses. He did that in the context of telling

them that they would look at how witnesses stood up

in cross-examination; how witnesses impress them as

to whether they were telling the truth.

It is out submission that the jury would not

have accepted that as a direction of law, but

rather for what it was intended to be and that was

practical guidance in relation to their role.

His Honour returned to this aspect in the passage

which commences at appeal book page 31 at line 45.

He did that in the context that he had been discussing the evidence, and in particular the defence case, and he reminded them of the test that

he had suggested you might apply to a witness when

considering the witness's credibility.

And at the top of page 32, the passage that is

the subject the complaint appears. His Honour was

very careful in that passage to make it clear to

the jury that it was their function, as the
tribunal of fact, that was being discussed and it

is my submission that it was clearly not a

direction of law. His Honour at line 3 referred to

them:

as the judges of the facts, might well

conclude that you should scrutinise the

witness's evidence closely. You might think -

it is a matter solely for you - that the

accused had the greatest interest of all the

witnesses you saw and heard and that,

therefore, you should scrutinise his evidence

closely.

It was put very clearly as a matter for them.

Your Honours, I would submit that the jury would

not have been led to believe that it was a
direction of law, but rather a matter of guidance

for them.

BRENNAN J:  Mr Butler, do you have a copy of the

notice of appeal to the Court of Criminal Appeal?

MR BUTLER: Yes, I was just attempting to locate that now,

Your Honour.

BRENNAN J:  Does it contain any ground relevant to the

present ground?

MR BUTLER:	The only ground that could possibly be relevant, in my submission, and not directly relevant, was
this ground and I will hand up a copy of it to
Your Honours.  Ground 1 was this:

That the learned Trial Judge's summing up to the Jury was inadequate in that

Robinson(3) 16 27/8/91

(a) the weaknesses in the prosecution case

were not developed sufficiently; and

(b) the case for the defence was put to the

jury in an unfavourable way.

The notice of appeal, I hand up that if that is of

assistance.	I have multiple copies of it,
Your Honours.

MASON CJ: Well, it seems fairly clear, does it not, that

this point emerged for the first time late in the

course of argument on the special leave

application. The point was not taken by counsel

for the applicant at the trial.

MR BUTLER:	Yes, that is so.
DEANE J:	But it was taken, was it not, in the affidavit in support of the special leave application, or, I
should have said, was it taken, because I notice
that the grant of leave refers to a specific paragraph, (b), in that affidavit?
McHUGH J:	From recollection, it was one of a number of four or five paragraphs where it referred to an
unbalanced summing up, was it not?
MR BUTLER:	It was one of many points taken in that notice.

TOOHEY J: Well, the affidavit itself, of Mr Finlayson,

which was part of the material on the special leave

application, leaves the matter in no doubt that at

least it was to be aired before this Court - - -

MR BUTLER: Yes, that is so.

TOOHEY J:  because paragraph (a) reads:

the Trial Judge erred in directing the jury in

effect that in assessing credibility the

evidence of the applicant at the trial should

be regarded in a different way from the

evidence of other witnesses because the

applicant has the greatest interest in the outcome of the trial of all the witnesses.

Then follows a transcript reference and this

sentence:

This direction resulted in the confusion of

onus and issues.

MR BUTLER:	Yes.
MR TOOHEY:	I was just looking for the respondent's

answering statement. I do not think there was any

Robinson(3) 17 27/8/91

suggestion in that that the matter should not be
aired before this Court because it had not been
aired before the Court of Criminal Appeal, but I

have not really read that for some time.

MR BUTLER:  I am not certain of that, Your Honours.

DEANE J: Well, looking at the transcript of the leave

application, the Crown did not raise the fact that

the point had never been taken in the Court of

Criminal Appeal nor did it raise the fact that no

redirection was sought on this point.

MR BUTLER:  I appeared for the Crown in the application. I

do not specifically recall - - -

DEANE J:  I mean, the only redirection that was sought was

one that applied to the complainant, the approach

that the appellant now says is quite improper.

MR BUTLER:  Yes.

DEANE J: There was no suggestion that it was wrong to say

that the accused's evidence should be scrutinized

with great care because of his interest in it. The

problems of that are compounded by the fact that
the case was conducted on both sides on the special

leave application on the basis that there was no

problem in those regards.

MR BUTLER:  I have not seen the transcript of that,

Your Honour. I do recall that there was specific

reference to the redirection application and it is

my recollection that I did submit on the leave

application that the point being taken on the

application was not the same as the redirection

sought.

DEANE J:  You may well be right. I have just glanced at it.

If you would like it while you are on your feet, I

will hand it down to you, but that is probably a

bit unfair to you.

MR BUTLER:	I do have a recollection of that, Your Honour, and Your Honours may find that upon a reading of
it. I do not have a recollection as to whether or
not it was specifically addressed - on the special leave application that this specific point had not
been taken before the Court of Criminal Appeal.
DEANE J:	Mr Butler, I apologize, you did make the point

quite clearly. What you said was:

The specific point complained of here,

although it gave rise to a redirection, that
redirection did not involve a complaint about

specifically what His Honour had said about

Robinson(3) 18 27/8/91

interest but rather a complaint that

His Honour had not included the complainant -

What you say is obviously correct.

MR BUTLER:	Yes.
McHUGH J:	And then later on you say:

This specific point was not canvassed in the

Court of Criminal Appeal where the point that

was considered was whether the general nature

of the summing up .... was one-sided.

MR BUTLER:	Yes, thank you, Your Honour.
MASON CJ:	I think, looking at the discussion in the special

leave application, you did concede that this

direction was common enough to direct a jury in

relation to interest, in Queensland, and that, no

doubt, elevated the point into one of general

importance which otherwise it might have lacked,

and perhaps invested the point with an aura of

importance that it would have lacked but for that

circumstance, particularly having regard to the

fact that no redirection was sought at the trial.

MR BUTLER:  Yes. My submission in relation to that is in

accord with Mr Greenwood's. My understanding of

the position in Queensland would accord with what

he placed before the Court, namely that a general

direction referring to matters which may be

assessed in considering the credibility of a
witness is often given, and that the interest of a

witness is one of the matters referred to there.

But the further aspect, where His Honour

specifically referred to the accused as having an

interest, is not, in my experience, a common matter

placed before the jury by trial judges in

Queensland.

BRENNAN J:  I have heard it said, "The interest of the

accused is obvious".

MR BUTLER:  Yes. I would not suggest that it is never

referred to. Your Honours, my submission so far

has been that His Honour did not direct the jury as

a matter of law in relation to this but, rather,
gave them guidance - whether one would call it a

direction of fact in relation to their role as a

tribunal of fact. Our submission is that the jury

would not have misunderstood the effect of

His Honour's comments. They had been clearly, as I

have said, directed in relation to the distinction

and role between judge and jury. They had also

been very clearly, and on a number of occasions in

Robinson(3) 19 27/8/91

the course of the summing up, directed in relation

to the onus and standard of proof. Indeed, they

were directed in relation to that directly after

the passage on page 32 that is complained of, and

that occurred at line 35 on page 32 where

His Honour once again directed them in relation to the onus and standard of proof.

DEANE J:  Mr Butler, what if, at the end of the day, reading

this summing up as a whole, one reads the overall

effect of the summing up as being, "You are likely
to think that the accused has the greatest interest

of anyone in the outcome of this trial and I direct

you that if you think that, you must scrutinize his

evidence more carefully than that of any other

witness."? Could you, if that was the effect of

the overall summing up, justify it?

MR BUTLER:  I would not seek to justify a direction that

went that far. My submission is that His Honour's

comments in this case do not go that far.

DEANE J:  I follow what you say and the context of the onus

of proof directions and what was said about the

complainant add some force to that, but I was

concerned with what you would say if, reading it

all, that was the impression which one thought

would be left with the jury.

MR BUTLER:	Yes. Notwithstanding the submissions of the appellant here, I would submit that if the jury, as
a result of the passage on page 32, had been
inclined to place the accused in a different
category from other witnesses, that the redirection
made it clear to them that that was not the case
and my learned friend has read it out but His Honour said, at the bottom of page 43 on the
last line:

I didn't intend to lead you to believe that

you apply only the interest in the outcome of

the case test to the accused only. You apply

it to all the witnesses if you believe that

test is applicable.

Once again, His Honour made it clear that it was a

matter for the jury whether they even accepted this

guidance in relation to interest that it was not a

direction of law:

You apply it to all the witnesses if you

believe that test is applicable.

His Honour was - I just mention this before I pass

on - very careful to make it clear to the jury that

even if they disbelieved the accused they, of

course, nevertheless had to be satisfied beyond

Robinson(3) 20 27/8/91

reasonable doubt in relation to the Crown case and
he gave that direction at page 6 at line 20

commencing there and it was repeated just prior to

their initial retirement at page 35 of the appeal

record at lines 50 to 60.

Our final submission would be that the summing

up should be read as a whole, that read in context

the jury would not have been diverted from their

correct role in considering whether or not the

Crown case was proved beyond reasonable doubt.

Your Honours, before I complete my submission,

I would submit that there has been no misdirection

of law in this case, that if Your Honours were not

to accept my submission that there was no

miscarriage of justice in relation to the comment

by His Honour in relation to a matter of fact, that
nevertheless it would be appropriate to apply the

proviso.

TOOHEY J:  What would be the justification for applying it

in the present case, Mr Butler?

MR BUTLER:  My submission would be that one would look

firstly at the gravity of the misstatement of fact

and my submission is that in the context of all the

other directions in this case and, in particular,

in regard to the redirection that was given, that

it would not amount to a substantial miscarriage

and that Your Honours should also look to the

strength of the case here which was a case where

intercourse was not disputed and Your Honours could

look to the fact that there was evidence capable of

amounting to corroboration of the complainant's

evidence and that the consistency of the

complainant's evidence was supported by recent

complaint evidence, that were accepted. Those are

my submissions, Your Honours.

MASON CJ: Thank you, Mr Butler. Yes, Mr Greenwood.

MR GREENWOOD: Nothing in legitimate reply, unless you wish

to hear me on the proviso.

MASON CJ:  No, the Court does not wish to hear you on the

proviso.

The Court will consider its decision in this

matter.

AT 11.25 AM THE MATTER WAS ADJOURNED SINE DIE

Robinson(3) 21 27/8/91