Robinson v The Queen

[1991] HCATrans 152

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B44 of 1989

B e t w e e n -

ROBERT RAYMOND LLOYD ROBINSON

Applicant

and

THE QUEEN

Respondent

Application for special leave
to appeal

DAWSON J TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 24 JUNE 1991, AT 2.56 PM

Copyright in the High Court of Australia

Robinson 1 24/6/91

MR S.R. NORRISH, QC:  May it please the Court, I appear for

the applicant with my learned friend,

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

Associates)

MR B.J. BUTLER:  May it please the Court, I appear for the

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

(instructed by the Director of Prosecutions)

DAWSON J:	Mr Norrish.
MR NORRISH:	Your Honour, we have taken the opportunity, if

it be of some assistance to the Court, of
distilling the matters which would be the subject

of the application for special leave in a short

outline.	May I hand up four copies of that
outline, if it please you.	I should point out to

Your Honours that several of the grounds relied

upon in the affidavit in support of the application

are not pressed for the purposes of this

application, and the principal matters are set out

in that outline which has been handed up.

DAWSON J:  Yes, Mr Norrish?

MR NORRISH:  Yes, may it please the Court. As is set out in

the outline, there are two principal matters which
are raised for the purposes of determining the

issue of whether special leave should be granted in

this particular appeal. One matter concerns the

proper role of the Court of Criminal Appeal in

examining whether fresh evidence is credible and

the second matter concerns the proper directions
for a jury to be given by a trial judge in

assessing the sworn evidence of an accused person

in the context of proper directions to ensure a

balanced summing up.

Your Honour, we would be submitting to

Your Honours that the two issues that are advanced as being the basis for the grant of special leave

are two issues of law, of general importance to the

administration of justice in this State and,

particularly, in respect of the first ground, we

ask the Court to grant leave for the purposes of

enabling the High Court to examine the appropriate

way in which the principles of this Court in

Gallagher v Reg and Mickelberg v Reg are to be

applied by a Court of Criminal Appeal.

The fresh evidence which was advanced to the

Court of Criminal Appeal, in our submission, was

both relevant and critical to an examination of

whether the evidence relied upon by the Crown to

corroborate the complainant was capable of so doing

and whether the prosecutrix could be believed in

Robinson 2 24/6/91

her version of events as to the circumstances of

the act of intercourse with the applicant.

Your Honours, it is submitted that the matter

that the Court would need to consider, if granting

special leave in this matter, is to examine whether

a Court of Criminal Appeal, in determining whether

fresh evidence ought to be relied upon to set aside
a guilty verdict where the issue of credibility of
the material arises, is enabled in its examination
of that material to substitute its views for the

credit of the witness for that of a reasonable jury

and we would respectfully submit to Your Honours

that having regard to what the Court said in

Mickelberg, importance and requires clarification.

particularly the role of a Court of of general

We would submit that the principle to be

applied is that where fresh evidence is to be

considered as to its credibility, it requires an

examination by the Court of Criminal Appeal to
determine whether a reasonable jury could accept it

as true, not whether the court thought it likely

that a reasonable jury would believe it. The Court

of Criminal Appeal's assessment of credibility

should have been limited to the inherent

plausibility of the material and the court should
not have been involved, in its assessment of the
material, of an examination of collateral matters

such as the witness's explanation given for her

failure to provide this material to the legal

advisers of the applicant at the trial or her
criminal history as was set out at pages 41 and 42

of the appeal book.

DAWSON J: Is not the test whether the evidence would be

cogent and plausible?

MR NORRISH:  Yes, that is correct, Your Honour, and we say

that in assessing whether evidence is cogent and

Appeal to be directed as to what issues it should plausible there is a need for a Court of Criminal consider in determining those matters.

DAWSON J: It is not a matter of issues, it is a matter of

the evidence, is it not?

MR NORRISH:  Well, yes. We would submit to Your Honour that

the evidence should be examined to determine

whether it is inherently plausible and cogent but

that the examination of the credit of the witness
by reference, for instance, to matters of prior

criminal convictions involves the Court of Criminal

Appeal in undertaking a task which should be left

to a jury in assessing that evidence in determining

whether it can rely upon it for the purposes of, in

Robinson 3 24/6/91

this particular case, accepting that there is

evidence that corroborates the complainant's

account.

TOOHEY J:  When you say "credit", Mr Norrish, are you

equating that with credibility or drawing a

distinction between the two?

MR NORRISH:  The distinction can be made. An example would

be that if the evidence given as fresh evidence

involved a version of events which was inherently

incredible for the reason that evidence was

available to the court to demonstrate that the

particular witness could not have had the

opportunity to have a particular conversation which

is relied upon, then that is a matter that the

Court of Criminal Appeal could take into account in
determining whether they should accept that

evidence as credible. But if the evidence of the

witness has an inherent plausibility, in the sense

that the witness had an opportunity to have a

relevant conversation with, as in this case, the

complainant, however, in assessing the witness, the

witness has the misfortune to have prior criminal

convictions, then the Court of Criminal Appeal

should not go beyond the preliminary examination of

the evidence to determine its inherent credibility

in the sense that I define it, that is, the

credibility of the testimony taken by itself. It

should not be allowed to go on to undertake what is

primarily a jury function of assessing the credit

of the witness by examination of collateral matters

such as were undertaken in this case.

Your Honours might note from the appeal book,

at page 42, that the court relied upon essentially

three matters for rejecting the witness's evidence.

The first matter was an examination of her

testimony as against the medical evidence given at

the trial.	Our submission in relation to that
matter is that the medical evidence at the trial

was essentially unchallenged because the accused,

or the applicant in this Court, was in no position
to test the medical evidence by putting some
alternate version to the doctor or even calling

additional medical evidence to explain the injury

to the complainant's lip. The court relied

then upon the inexplicable failure of the witness

to provide the information to the legal advisers of

the accused at the trial. In our respectful

submission, that was a matter which was overcome by

the decision of the court to accept the evidence as

fresh evidence in the true sense, not evidence

which could have been made available to the legal

advisers of the accused if due diligence had been

exercised by them in their course of conduct at the

trial.

Robinson 4 24/6/91

The third matter that the court relied upon

was the fact that the witness had prior criminal
convictions which was a significant matter in the

court's view in determining whether the witness was

a person of credit. As I earlier submitted, that

was a matter, in our respectful submission, which
was entirely a matter for a jury to determine.

This was a case, Your Honours, where the

credibility of the complainant was critical to the

proof of guilt of the accused, the accused having given evidence at the trial. The evidence of the accused and the complainant was in direct

opposition - the evidence of each was in direct

opposition to the other on the critical issue that

the jury had to determine and, in our respectful

submission, in the circumstances as they stood the

existence of corroborative evidence, that is,

evidence which was capable of supporting the

testimony of the complainant in a material sense,

was of critical significance for the jury to

determine whether the accused was guilty or not

guilty.

This was a charge which required, under the

Queensland practice, the Kelleher direction, and if

the evidence of the witness who was called at the

Court of Criminal Appeal was made available to a

jury, the jury may be left, subject to any further

evidence that the accused may wish to lead of a

medical nature, with an uncorroborated complaint in

respect of which the jury would have been directed

by the trial judge that it would have been

dangerous to convict upon that evidence.

TOOHEY J: It is true that the appellate court cannot, as it

were, assume the role of the jury, but what if the

evidence seems to that court to be simply lacking

in credibility? Is it not a proper course then for the court to say, "Well, this is not fresh evidence

that warrants a retrial."?

MR NORRISH:  Your Honour takes me back to the point that I

believe I made earlier that on the evidence
available to this court, it was not open to the

court to say that the evidence lacked credibility

in the sense that it was inherently incredible or

was inherently implausible. The evidence of the

complainant and her boyfriend - or of her friend -

at the hearing of the matter before the Court of

Criminal Appeal confirmed that the witness may have

had the opportunity to hear such a conversation.
The issue as to whether the conversation actually
occurred would have involved a jury in, first of
all, accepting, we concede, that the witness called
on behalf of the accused was a witness of truth,
but in the way in which the Court of Criminal

Appeal went about assessing that evidence, we

Robinson 24/6/91

submit that that task and the way in which they did it was a matter solely for the jury and not for the

Court of Criminal Appeal.

DAWSON J: But you could say the same about any occasion,

could you not, when a court concludes that the

evidence is neither cogent nor plausible?

MR NORRISH:  Yes, as was the case in Gallagher.

DAWSON J: But that is the task which is assigned to the

Court of Criminal Appeal.

MR NORRISH:  Yes, but we submit that special leave should be

granted in this particular case to define the

limits to which the Court of Criminal Appeal may go

in making that particular decision.	If it is a
matter of the - - -

DAWSON J:	What do you say the limits are?
MR NORRISH:	The limits are, we would submit, that the Court

of Criminal Appeal should not be permitted to

pursue collateral issues to determine whether

evidence is plausible, cogent or credible.

DAWSON J:	What are the collateral issues that you suggest?
MR NORRISH:	Such as the criminal history of the witness.

DAWSON J: But that is something that the evidence would be

tested by on any trial.

MR NORRISH:  Yes, that is correct.

DAWSON J: Undoubtedly, the witness would be subjected to

cross-examination.

MR NORRISH: Yes, and that is precisely - - -

DAWSON J:  And it is something that therefore has to be

taken into account in assessing the cogency of the

evidence or plausibility.

MR NORRISH:  If Your Honour has regard to what Their Honours

Mr Justice Toohey and Justice Gaudron said in

Mickelberg - I could take Your Honour to the

authority if Your Honour wishes. I have copies of

the authorities for Your Honours if Your Honour

would wish me to hand them up.

DAWSON J:	Thank you.
MR NORRISH:	I refer Your Honours to Mickelberg v Reg,

(1989) 167 CLR 259, and I would particularly refer

Your Honours to what Your Honour and

Justice Gaudron said at pages 301 to 302 of that

Robinson 6 24/6/91

decision where Their Honours sought to formulate

the basis upon which a Court of Criminal Appeal

could set aside a conviction on the ground of fresh

evidence. The particular portion of the judgment

to which I would refer Your Honours is at the very

bottom of the page, going over to the following

page, 302. If I might quote, if Your Honours

please:

For ease of expression we proceed by reference

to the formulation that the jury is likely to

have entertained reasonable doubt had all the

evidence been before it, noting, in that

context, that it is necessary that the fresh

evidence be credible in the sense that a
reasonable jury could accept it as true, but

it is not necessary that the court should

think it likely that a reasonable jury would

believe it.

And, in our respectful submission, the task that

the Court of Criminal Appeal undertook in this
particular judgment, in its assessment of the

evidence of Miss Mace, was to take that one further

step and form a view as to whether a reasonable

jury would be likely to believe it.

DAWSON J:  Now, which particular passage in the judgment do

you draw that from?

MR NORRISH:  Yes, if Your Honours please, if I might take

you to page 41 to 42 of the appeal book - I am
sorry, Your Honours, I would refer Your Honours to

at the appeal which contradicted the version given by the witness, Your Honours might see that there

the summary appearing at the top of page 41.

is a summary of the medical evidence and criticisms

made of the evidence of Miss Mace. Could I take

Your Honours to approximately point 6 of the

page - the appeal book that I have does not have

the lines numbered - where Their Honours said:

But we consider that the evidence by Miss Mace

is so lacking in credibility that there was no

significant possibility that the

unavailability at the trial of the evidence of

Miss Mace resulted in the miscarriage of

justice.

And then Their Honours went on to summarize the basis upon which the evidence ought to be rejected.

DAWSON J: Is not the court saying there that in fact a

reasonable jury could not accept this evidence as

being true?

Robinson 7 24/6/91

MR NORRISH:	I believe, Yours Honours, that what the court did was to go one further step than that and
express the view that they had undertaken an
assessment of the evidence and formed the view that it was so lacking in credibility, having regard to
matters which, in our submission, were matters for the jury to assess and not for them to assess.

TOOHEY J: That is something I have some difficulty with,

Mr Norrish. In order to determine whether the

evidence is plausible or cogent, it may be one

thing for the appellate court to, as it were, gauge
the demeanour and credibility of the witness but

are you suggesting that it is not open to the court

to look at other matters that throw some light upon

the plausibility or cogency of that evidence?

MR NORRISH:	No.
TOOHEY J:	I appreciate, I think, the submission you are

making, that it is not for the court to substitute

itself for the jury.

MR NORRISH: That is exactly right.

TOOHEY J: But it may be necessary for it to embark on some

sort of an inquiry, it ordinarily would be, to

measure that evidence against other evidence that

had been given at the trial.

MR NORRISH:  Yes.

TOOHEY J: So, is your complaint about the matters that the Full Court took into account in deciding that this evidence did not constitute fresh evidence or the

test that the court applied or what?

MR NORRISH:  The complaint is two-fold, Your Honours. would respectfully submit that the test applied by We

the court was the second test disapproved of by

Your Honour and Justice Gaudron in Mickelberg and

also that the court took into account matters which

were not open to it to take into account in

assessing the evidence.

We would concede quite readily that the court

is required to undertake some sort of critical

analysis of the evidence in its terms.

McHUGH J:  And also the character of the person who gives

it. Surely there is a world of difference between

evidence given by a bishop and t~e same evidence

given by a notorious liar or convicted criminal.

MR NORRISH: Yes, but we would submit, Your Honour, that the

distinction in those two cases would be primarily a

matter for the jury to assess. It is very

Robinson 8 24/6/91

difficult, in our respectful submission, for the

Court of Criminal Appeal to take the collateral

credit of the witness, in the sense that the

witness has prior criminal convictions, into

account and not offend what His Honour Justice

Toohey and Justice Gaudron disapproved of in

Mickelberg when Their Honours said, as I quoted

earlier, that the task did not require the court to

assess whether it be likely that a reasonable jury

would believe it.

McHUGH J:  No, but once the court has analysed the material,

if it comes to the conclusion that the evidence is

so lacking in credibility that no reasonable jury

could accept it as true, that is the end of the

matter. Now, that is all that this court did.

They may have got it wrong but surely they applied

the right test.

MR NORRISH:  Our complaint is that they did not apply the

right test, as I have indicated earlier. It should

be said that if they did get it wrong in the manner

in which they went about assessing the evidence to

determine whether it was credible evidence, then

that is a matter, in our respectful submission,
that would warrant the grant of special leave

because it would seem that if the court applied a

method of analysis which was incorrect, then it

bespeaks of an error in approach by the court in
applying the principles of this Court in

determining whether fresh evidence is of such a

nature as to warrant the ordering of a new trial

or, alternatively, in another case - and I am not

suggesting it applies in this case - ordering an

acquittal.

McHUGH J: But if you analyse what the Court of Criminal Appeal did in this case: they make the summary statement that her evidence was:

so lacking in credibility that there was no

significant possibility that the

unavailability -

of that evidence resulted in a miscarriage. Then

they drop from that summary or general statement to
the particulars and they examine the inherent
probabilities of her evidence and they are very

skeptical of it and then they say her -

history does not inspire confidence in her as

a witness of truth -

and finally they say, "We weren't impressed with

her when we saw her in the witness box." So, that

is the basis of their judgment, that her evidence

was so lacking in credibility that there was no

Robinson 9 24/6/91

significant possibility of its unavailability

resulting in a miscarriage of justice.	What is the
matter with that?

MR NORRISH:  Your Honour, we would submit that their

analysis was not as Your Honour has put it. We

would submit that the analysis that they undertook

did not expose an inherent implausibility or lack

of cogency in the material in so far as it might be

relevant to a jury's consideration as to whether

the complainant's injuries did corroborate her

complaint of rape.

TOOHEY J:  But I think you also have to remember,

Mr Norrish, that all this is prefaced by a

reference to Mickelberg and a fairly substantial

quotation from the judgment, in particular the

passage to which you have taken us, so it can

hardly be said that the court was unaware of what
had been said in Mickelberg and, to read it in

context, one really has to read all those remarks

against the background of the court's

acknowledgement of the test that had been expressed

in Mickelberg.

MR NORRISH:  Yes. There is no doubt that Their Honours

quoted with favour what Your Honour and

Justice Gaudron said in Mickelberg. The complaint

is that what was required of it, in determining

whether this fresh evidence was such that it
warranted the quashing of the conviction and the

ordering of a new trial, the court did not properly

apply the principles enunciated in Mickelberg and

the method of analysis was such that it did not

expose the inherent lack of credibility or

implausibility which would be required to be

demonstrated to enable the court to determine that

the fresh evidence should not be remitted back for consideration by a jury by ordering a fresh trial.

DAWSON J: That is the first point.

MR NORRISH: That is the first point, if Your Honours

please. The second matter, if Your Honours have

regard to the outline, addresses the ground of

appeal set out in paragraph S(a) of the affidavit

in support of the application for leave to appeal

and set out in paragraphs (b) and (c) of the

special leave issues as identified in that

affidavit.

I might say, Your Honours, that it should also

be seen in conjunction with those-matters which are set out in paragraphs S(b), (c), (d) and (e) in the affidavit in support of the application for leave

to appeal. I do not propose to put submissions to

Your Honours in respect of those further

Robinson 10 24/6/91

subparagraphs but it would be respectfully
submitted that the particular matter complained of

and, in our respectful submission, requiring the

grant of special leave was of such significance

that it must be considered in the context of what

are appropriate directions in a trial to ensure

that the summing up is a balanced summing up such

as to enable the applicant to have a fair trial.

As we say in the outline which has been handed up to Your Honours, the way in which a jury is

directed as to how it may view an accused's
evidence is vital to the conduct of a fair trial,

particularly when the trial rests on issues of

credibility. And this was a case, Your Honours,

where, substantially putting aside the issue of

whether the complainant was corroborated or not by

the evidence of injury, which I might hasten to add

was the only evidence relied upon by the Crown as

corroborating the complainant's account, the

directions that the trial judge gave in respect of

how it should treat the applicant's evidence were

of vital significance.

The relevant directions, if Your Honours might allow me to take you to the appeal book just for a

moment, appear in the summing up at pages 321 to

322.       I do not know whether Your Honours wish me to

read it to you aloud but the relevant portion of

the summing up appears at point 4/5, the last

paragraph of the page. Unfortunately, the appeal

book, at that section, does not have a pagination

in line with the other sections of it. It is taken

directly from the transcript of the trial.

Your Honours may see the passage that appears at

the bottom of page 321, going over to about a third

of the way down the page of page 322. It sets out

directions that the trial judge gave to the jury as

to the way it should assess the applicant's

evidence. The critical passage appears at page

322, putting it in context as I have, where

His Honour said: 

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.

Your Honours, the direction that His Honour

gave in respect of how the jury might treat the
applicant's evidence was the subiect of a request
for redirection by counsel at the trial. If I

Robinson 11 24/6/91

could take Your Honours to page 333, once again
relying on the pagination of the trial

transcript, at approximately point 6 of the page

Your Honours will see that he gave further

directions which, in our submission, went no way to

cure the misdirection complained of by counsel at

the trial and which is, today, the subject of an

application for special leave to appeal. We would

respectfully submit that the jury was improperly

invited to infer a motive for the applicant not to

tell the truth; a direction which exceeds mere

comment on the facts.

Your Honours might note, I should point out to

you for completeness, that His Honour the trial

judge at page 296, relying again on the pagination

of the transcript, in dealing with the burden and

onus of proof, stated quite fairly that:

The onus of proving the charge

did not shift to the accused, pointing out that he

had given evidence and by giving evidence he

thereby did not accept any onus to disprove his

guilt. His Honour said:

What he said in the course of his evidence and what his witnesses said in their evidence

became part of the overall body of evidence in

this case for your consideration but it did

not mean that the onus of proof had shifted

from the Crown.

That appears at the top-third of page 296.

Your Honour, there is a paucity of authority in Australia as to what are the proper directions to be given to a jury in assessing evidence given

by an accused person.	Your Honours might note that
in our outline we refer to Liberato v Reg.	If

Your Honours would wish me to refer you to that

authority just for one moment - - -?

DAWSON J:  I do not know that it said anything about that,

did it? But by all means do.

MR NORRISH: No. Well, particularly, I was going to refer

Your Honours to the minority judgment of

Justice Brennan. I appreciate that Your Honour

and the Chief Justice and Justice Wilson had some

brief comments to make about the circumstances in

which special leave to appeal - ~ -

DAWSON J:  But did not deal with this point, yes.

MR NORRISH:  But did not deal with this issue at all. If I

could hand up five copies of that judgment. The

Robinson 12 24/6/91

particular portion of Justice Brennan's judgment to

which we would refer Your Honours - which was not
addressed by Your Honours, the majority,

Your Honour and Justices Wilson and

Acting Chief Justice Mason - is at page 515,

Liberato and Others, (1984-1985) 159 CLR 507. At page 515 His Honour made some obiter observations

concerning the significance of the treatment of

evidence where the case turns upon a conflict

between the evidence of a prosecution witness and
the evidence of a defence witness, such as was the

case in this particular trial where the trial

really turned upon the competing credibility, in

the context of the burden of proof that rested with

the Crown, of the complainant and the accused.

This was more so the case in circumstances where

the defence was that the act of sexual intercourse

was a consensual act of sexual intercourse there,

it was not a case of complete denial of the
allegation of intercourse but a denial of the

surrounding circumstances in which it occurred.

I refer Your Honours to what

Mr Justice Brennan says at approximately point 3 of

the page of the complete paragraph underneath the

quote. I do not believe I should read that to

Your Honours, if I could just leave that just for

the moment for Your Honours to read.

We would respectfully submit, firstly, that

what His Honour Mr Justice Brennan said

encapsulates trite principles in so far as the way

in which juries should consider evidence in

circumstances where the burden of proving

particular facts rests with the Crown.

Regrettably, we would submit that there are no
authorities of this Court which, by way of
statement of principles, can be applied in inferior

courts summarizing the appropriate directions which

ought to be made when assessing the evidence of an

accused person.

It is not the situation, we would submit,

having regard to the burden of proof, that an
accused's evidence can be the subject of the sorts
of qualifications that from time to time are made

about - the subject of direction, I should say, in

relation to evidence called in the course of the

Crown case. Your Honours might note in the outline

we refer to cases such as Bromley and Karpany, a

decision of this Court, and also McKinney, where

various categories of evidence may-be the subject

of a warning in circumstances where there may be some basis for having reservations as to whether

the evidence can be accepted for the purposes of

establishing the guilt of an accused person.

Robinson 13 24/6/91

I am not suggesting necessarily that

His Honour's directions constituted a warning to

the jury in a way in which a warning might be given

in respect of accomplice evidence or may be given
in respect of evidence from a person who had an

interest to serve or may be mentally unbalanced or

may be a policeman in some position of power over

the accused but his direction, which I have

referred Your Honours to, was a serious

qualification upon the jury's assessment of the

accused's evidence which, of course, was absolutely

critical on his defence.

DAWSON J: Really, was it? I mean, in the end what was said

by the trial judge, after he had given his

redirection, was that, "Well, you scrutinize the

evidence very carefully on both sides because both

have an interest in the outcome."

MR NORRISH:  Yes but, Your Honour, we would say that that

may well be an appropriate comment to make in

respect of the principal Crown witness in a trial

concerning an allegation such as this but there should never be any direction to a jury that it

might consider the interest of the accused in the
outcome of the trial in assessing that person's

evidence.

DAWSON J: It is a pretty obvious thing to say, is it not?

McHUGH J:  It is not very consistent with the presumption of innocence, is it?

MR NORRISH:	No, that is exactly right, Your Honour. would respectfully submit that not only is it -	We
well, firstly, to take Your Honour's point,
His Honour - - -

DAWSON J:  I mean, you have to put it in the context of

His Honour having said, "Well, it is a matter of

whether you have a reasonable doubt or not" and

that is the point that Justice Brennan made in

Liberato: that the mere fact that you reject the

evidence of the accused, that is not the end of the

matter.

MR NORRISH:  That is exactly right. The way in which

His Honour left it, I am afraid, did not invite of

that conclusion. His Honour did give directions
that the accused's evidence was evidence to be

taken into account in assessing the totality of the

material but His Honour still left, with his

redirections, the issue of considering the

competing motives of the prosecution's main witness

and the accused in determining where the truth lay

and, in our respectful submission, that was a gross

misdirection and was not cured by the earlier

Robinson 14 24/6/91

directions given in respect of the burden and

standard of proof.

DAWSON J: Yes, except it is something that is obvious, is

it not, that an accused person has an interest in

the outcome. It really is not something which

would escape an ordinarily intelligent jury.

MR NORRISH:  No, it would not but, in our respectful

submission, the jury - - -

DAWSON J:  I mean, he is on trial after all.

MR NORRISH:  Yes. I appreciate that, Your Honour, but our

submission would be that a jury should not be

invited to speculate as to whether the accused,

because of his or her interest in being acquitted,

has, for that reason, a motive to lie, because it

introduces an element into their deliberations

which - - -

DAWSON J:  I am not quite sure what you are saying: that

the jury should not be critical of an accused's

evidence because he is the accused, or should not

scrutinize it carefully?

MR NORRISH:  I have got no doubt that a jury can be invited to scrutinize the accused's evidence closely.

DAWSON J: In fact, they should, should they not?

MR NORRISH:	Yes.
DAWSON J:	And the vice in simply making that comment about

one witness is that there is a lack of balance;
but the balance is then restored if the judge says,

as the judge did here, "Well, of course, the truth

is you should scrutinize the evidence of both sides

carefully. "

MR NORRISH: With respect, Your Honour, we would submit that

firstly, Your Honour is right, that the original

direction bespeaks of a lack of balance in the redirections did not cure the matter.

trial judge's approach but the way in which

DAWSON J:  What do you say he should have said in his

redirection?

MR NORRISH:	He should have withdrawn the direction that he gave to the jury that they may co~sider, in
assessing the applicant's evidence, whether he did not have the greatest motive in the outcome of
these particular proceedings.  And, in fact, if
Your Honour has regard to his redirections, His Honour, whilst he referred to the motive of the

Robinson 15 24/6/91

complainant, did not qualify what he had earlier

said about the applicant's interest in the matter

being the greatest interest.

If I might take Your Honours to page 333 where

the redirections appear, he said, if I might just

pick up on his redirections on the third line of

the last paragraph:

I think I suggested to you this morning you

might well conclude that the accused has the

greatest interest of all the witnesses. I

think I also said that you might think that the greater interest the more carefully you

should scrutinise a witness's evidence. You

might well conclude, it is a matter for you,

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.

But he still left with the jury the offending

direction that the accused may have the greatest

interest in the outcome of the case and thereby may

have a motive for lying in his evidence and, in our

respectful submission, that direction should never

have been made and it was not appropriate that it

should be left to the jury in the form in which His

Honour left it with the redirections, it ought to

have been withdrawn and that it, given the outcome

of the trial, had the consequence of causing a
miscarriage of justice.

Their Honours, in determining the matter in

the Court of Criminal Appeal, considered the issue
of whether the summing up lacked balance and they

dealt in some detail with various arguments that

were raised on behalf of the applicant in the

course of the trial or raised by the applicant in

the course of the appeal in criticism of the Crown
case but which were not put to the jury in the

course of the trial judge's summing up.

Their Honours did not address what we would

respectfully submit was a fundamental aspect of the

accused's evidence which, as we have said earlier,

lack of balance and that is the way in which

was critical to the outcome of the case so far as

the accused was concerned.

I might say, Your Honours, that we would also

say, for the purposes of our application for
special leave, that the Court of Criminal held that
the summing up would not be set aside unless it was

Robinson 16 24/6/91

so one-sided as to lead inevitably to conviction or

to preclude a jury from doing justice. We would

respectfully submit that this particular case

invites of this Court to examine what is the

appropriate circumstance in which a Court of Appeal

may determine that a summing up does lack balance.

DAWSON J: That is hardly a special leave point, is it?

MR NORRISH:  Having regard to the authorities relied upon by

the Court of Criminal Appeal, if I could just take

you very briefly to the appeal book, Their Honours,

if I might say, between pages 30 and 33, undertook

an analysis of the summing up particularizing the

complaints that were obviously raised at the

hearing of the appeal and Their Honours went on, at

the bottom of page 33 and over to page 34, to

consider what were the relevant authorities to be

applied in determining whether a miscarriage of

justice was caused by an absence of balance in a

summing up at trial.

Having regard to the decisions that

Their Honours relied upon, Their Honours said, if I

may take Your Honours to page 34 at the second

paragraph:

Where a summing up is so one-sided as to

lead to the conviction of the prisoner or to

preclude a jury from doing justice, it may

amount to a miscarriage of justice which would

result in the verdict being set aside on

appeal.

We would respectfully submit to Your Honours that

the true issue for a Court of Criminal Appeal is to

examine whether the summing up as a whole poses the

issues of fact and law for the jury's decision in a

fair and balanced way without comment which might

otherwise divert the jury from a proper

appreciation of the evidence, and that this Court

should consider, having regard to the task that the

Court of Criminal Appeal undertook in this

particular matter, what in fact should be the

appropriate test for a court of review to apply in

determining whether a summing up does lack balance

or is in some way so unfair to the accused as to

inevitably lead to a miscarriage of justice.

Certainly, we put that matter before

Your Honour as a contextual matter really to the matter that is raised as our special leave point in

respect of the directions His Honour gave in
respect of the applicant's evidence, but we believe

that it is a corollary to Their Honours' findings

in the Court of Criminal Appeal and is a matter

worthy of consideration by this Court because when

Robinson 17 24/6/91

one has regard to the decision of the Court of

Criminal Appeal, one can see that there seems to be

some paucity of authority from this Court as to the

appropriate test to be applied. Certainly I cannot place before Your Honours any decision of the Court

of Criminal Appeal of recent times which has

considered this issue.

It is an issue of general importance, not only

in Queensland but in other States, because it is

often a ground of appeal to a court of review, a

Court of Criminal Appeal, that the summing up lacked balance and was unfair to an accused. Many times those grounds are determined on the basis of

the trial judge having the benefit of the
atmosphere of the court and the benefit of
assessing witnesses and being able to make
decisions as to what matters may be relevant to his

or her summing up, but there are matters of

principle which we respectfully submit ought be

considered beyond the advantage a trial judge has at first instance, and we do not believe that the
Court should allow a decision of the Queensland

Court of Criminal Appeal to stand where it invites

interference from the court only where the summing

up is so lopsided as to inevitably lead to

conviction as was expressed in the judgment of the

court in this particular instance. I advance that

matter as being a matter of importance related to

the particular issue that we raised earlier.

Can I just raise one last matter. My learned

junior has reminded me. It is a matter that I was

proposing to take up.- Your Honour Mr Justice

Dawson posed to me the matter of whether His Honour's summing up addressed the particular

concern that was raised in the judgment of

Justice Brennan in Liberato. I should point out

that nowhere in his summing up did His Honour tell

the jury that they may reject the accused's

evidence but still be left with a reasonable doubt

as to the guilt of the accused or the applicant,

having rejected the evidence. It is true that

His Honour said that the evidence was part of a

totality of material but His Honour

Justice Brennan, of course, went one step further, quite properly so, to point out that the critical

defence witness, whoever it may be, may be rejected
and yet a jury may still be invited to entertain a

reasonable doubt as to the guilt of the accused

even if the only credible evidence left is that of

the principal witness upon whom the Crown relies.

If Your Honours please, they are my submissions.

DAWSON J:  Thank you, Mr Norrish. Mr Butler.

MR BUTLER:  May it please Your Honours.

Robinson 18 24/6/91

DAWSON J:  We do not need to trouble you on the first point,

Mr Butler, you can address us generally.

MR BUTLER: Yes. In our submission, the Court of Criminal

Appeal applied the correct test in relation to fresh evidence. That can be seen from the fact

that their approach to fresh evidence and their

discussion of the evidence of the witness who was

examined before them commenced with the passages,

as has already been indicated, from the judgments

of Your Honour Justice Toohey and Justice Gaudron

in Mickelberg v Reg.

The court, in arriving at its conclusions,

clearly was harking back to that passage, in my

submission, in the central conclusion where the

court said:

But we consider that the evidence by Miss Mace

is so lacking in credibility that there was no

significant possibility that the

unavailability at the trial of the evidence of

Miss Mace resulted in the miscarriage of

justice.

The court was clearly harking back to the test of

significant possibility which was set out in that

passage as one of the alternative formulations for
the appropriate test in relation to fresh evidence.

That is the passage that my learned friend has referred to which appears at page 38 of the appeal

book in the judgment of the Court of Criminal

Appeal or is - - -

TOOHEY J: There is no doubt that the court adverted to what

was said in Mickelberg. The real question is

whether it was applied, I suppose. I just wonder,

Mr Butler, at the passage at page 41, about midway down the page, where the court said:

If credible evidence was adduced that the

complainant's injury might have been caused

by a blow from her boyfriend the jury might
have reached a different verdict.

But that was not a matter in the minds of the

defence at the time the trial was conducted.	How
relevant is it to advert to the possibility of

credible evidence that the blow might have been

caused in some other way?

MR BUTLER: In my respectful submission, ~he court there was

simply recognizing that if the evidence of this

witness, the fresh evidence, had been sufficiently

credible so that there would have been a

significant possibility in relation to it in the

Robinson 19 24/6/91

mind of a jury, well then that, they recognized,

was relevant.

TOOHEY J:  I was reading it, really, with an eye to what

follows later down the page, namely, that the

evidence given by the witness whose evidence was

sought to be relied upon was:

inconsistent with the medical evidence as to

the condition of the complainant's mouth.

What is meant by th~t?

MR BUTLER:  The evidence of the witness who was examined

before the Court of Criminal Appeal was that she

heard a conversation in which the boyfriend was

said to have suggested that he struck the

complainant a blow to the mouth and that had been,

presumably, an explanation for the injury that the

complainant had.

TOOHEY J: Yes, I appreciate the conversation that was said

to have been overheard. It is the inconsistency of

that evidence with the medical evidence that my

question was directed at.

MR BUTLER:  Yes. Well, the medical evidence indicated that

the nature of the injury was inconsistent with such
a blow and the court, in recognizing that, was
recognizing the improbability of the truthfulness

of the account that was given by the witness.

TOOHEY J: But how do you mean, ''inconsistent with such a

blow"? I mean, on either account was it not said

to have been the result of a blow?

MR BUTLER:  Not of the nature of a punch. You see the

evidence of the doctor which appears at the bottom

of the passage at page 41 which is extracted there:

This injury is unlikely to have been caused by

an impact blow, such as a punch, due to the

absence of bruising and swelling of the

surrounding area.

The alleged conversation that the witness gave

evidence of before the Court of Criminal Appeal appears at page 39. It is in the passage, once

again, which is extracted there.

do you honestly think I'd be silly enough to

tell her that you hit me in ·the mouth because

you didn't believe me.

That was alleged to have been said by the

complainant to her boyfriend after he had

apparently berated her about speaking.

Robinson 20 24/6/91

TOOHEY J: Yes, thank you, I understand the point that is

being made.

MR BUTLER: In my submission, the court was entitled, in

fact obligated, to test the credibility of the
witness and having done so, then had to apply the

test and the appropriate test was the test of

whether the jury would have been likely to

entertain a reasonable doubt about the guilt of the

accused, on all the evidence, or that there is a

significant possibility that the jury, acting

reasonably, would have acquitted the accused. The

court clearly, in my submission, having carried out
the exercise of testing the evidence, applied that

test and they formulated in terms of the

significant possibility formulation, and	that was
an appropriate application of the test.	I would
submit that it does not give rise to any	special
leave point.

On the second aspect, Your Honours, in

relation to the directions of the learned trial

judge in relation to interest, it would be my

submission that clearly enough the credibility of

all witnesses, where there is some conflict in the

evidence, must be tested by the jury. That is the

very nature of the process. It should not be the

case that a trial judge cannot give any assistance

to the jury as to how they would go about that task

and the accused should not be excepted from any

assistance in that regard subject, of course, to this, that the jury should not be misdirected or

misled in any way in respect of the onus and

standard of proof.

DAWSON J:  But if you tell the jury to regard his evidence

with suspicion, is that not, at least in some way,

casting doubt upon the veracity of what he says?

MR BUTLER:  In my submission, what His Honour did in this

case is commonplace enough, in my submission, was

indicating to the jury that in testing the

credibility of witnesses they could look at various

aspects, including the interest that witness had.

McHUGH J: Is this a common direction in Queensland in

criminal trials?

MR BUTLER: In my experience, it is common enough to direct

a jury in relation to interest.

McHUGH J: Could I just ask you this: would.you agree it

was a misdirection to tell the jury that the

accused's evidence should be scrutinized more

carefully than any other witness in the case? And

could I then ask the follow-up question: is that

not the effect of this direction? Because there is

Robinson 21 24/6/91

nobody in the case with a greater interest than the

accused, and the only result of this direction, it

seems to me, is that this jury were told that the

accused's evidence should be scrutinized more carefully than any other witness in the case.

MR BUTLER: In my submission, it is not a question of - and

His Honour was not indicating it should be

scrutinized more carefully but, rather, indicating

a test which the jury could apply to evidence.

McHUGH J: But it seems to me, Mr Crown, that is the problem

with it, that the effect of the direction is that

the accused's evidence will be scrutinized more

carefully than any other witness in the case simply

because he has a greater interest in the case than

any other witness including the complainant.

MR BUTLER:  To the extent that that might have been, the

redirection - - -

McHUGH J: Well, I do not think the redirection cures it,

you see, because the trial judge simply repeats it,

in effect. He said at page 344:

You apply it to all the witnesses if you

believe that test is applicable.

Well, the person who is most affected by that test

is the accused and therefore it means that his

evidence is scrutinized more carefully than anybody

else's evidence in the case.

MR BUTLER: It is not necessarily the case.

McHUGH J: Well, it is not necessarily, I know, but I

would - prima facie, he is the person with the

greatest interest in the case.

MR BUTLER:  It does not only relate to interest in the case

and His Honour never, in my submission, put it that

highly.

McHUGH J: Well, "interest in the outcome". It is worse, is

it not, "the interest in the outcome of the case"?

That is what he said when he was talking about the complainant.

MR BUTLER:	My submission would be that what His Honour said in that regard must be read in the light of the
clear directions in relation to ~he onus of
standard of proof.  My learned friend did refer
Your Honours to those directions in part where they
appear at page 296 in the transcript in the appeal
book. His Honour, we would submit, very carefully
indicated to the jury there that the onus never

Robinson 22 24/6/91

shifted from the Crown. In fact, at line 20, he

said:

Indeed you can disbelieve the accused and his

witnesses in every word they utter from the
witness-box and it would not follow that

therefore he is guilty and the Crown has

proved the case against him. That onus of

proving his guilt is still with the Crown.	In
short, the onus of proving the accused man's
guilt never shifts from the Crown.
So, the jury have been given very clear

directions in that regard and, in fact, His Honour

returned to that, towards the end of his summing

up, at page 325 where, at about line 50, he

reminded the jury that:

the onus of proof of the accused man's guilt

is at all times with the Crown; that onus is

to be to the standard of proof beyond

reasonable doubt; although the accused went

into the witness-box and called evidence in

his defence he did not undertake any burden to

disprove his guilt.

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

interest but rather a complaint that His Honour had

not included the complainant in the - - -

McHUGH J:  Had not included the complainant?

MR BUTLER: Yes, had not included the complainant. That

appears at page 328 of the transcript at about

line 40 where defence counsel said:

I am asking Your Honour to direct the jury

that the complainant also has an interest in

the outcome of the proceedings -

and went on to enlarge on that. This specific

point was not canvassed in the Court of Criminal general nature of the summing up and whether or not

it was one-sided.

My submission is that reading the summing up

as a whole, the jury would not have been misled in

relation to the appropriate approach they should

take to the onus of standard of prbof.

The other matter raised by my learned friend

was the general nature of the summing up.	In my
submission - - -

Robinson 23 24/6/91

DAWSON J:	I do not think we need trouble you on the general nature of the summing up, Mr Butler.
MR BUTLER:	Thank you, Your Honours, I have nothing further.
DAWSON J:	Mr Norrish.
MR NORRISH: Yes, Your Honour, just very briefly:	just in

reference to what Justice Toohey raised in respect

use of the medical evidence to discredit the witness called before the Court of Criminal Appeal

of the evidence referred to in the judgment of the the

on behalf of the applicant, might I remind

Your Honours that at page - I have lost the page

reference but there is, in the appeal book, a

summary of the medical evidence that was given.

TOOHEY J: There is mention of it on page 318, Mr Norrish.

Are you speaking of the summing up itself?

MR NORRISH:  Yes, I am talking about the summing up itself.

The only reason I draw it to Your Honour's

attention is that it might assist Your Honour to

assess - - -

TOOHEY J: Well, there is reference to Dr Buchanan's

evidence and a ring as a possible cause of the

abrasion, at the top of the page.

MR NORRISH:  It is page 309 of the summing up. The medical

evidence, in fact, was quite equivocal as to how

the injury to the lip might have been caused.

True it was there was a suggestion in the evidence

that it was not consistent with a punch but the

witness, Miss Mace, had referred to the boyfriend

talking about the complainant being hit. The

circumstances were not particularized and if Your

Honours have regard to page 309 where the relevant

medical evidence is summarized, the doctor

concluded with adopting the proposition that the

injury was equally consistent with:

all sorts of other parameters -

I think, was the expression used.

The other matter I should raise in response, I

do apologize to Your Honours, my friend is quite

right. What I put to Your Honours about the

remarks of Mr Justice Brennan concerning the
requirement to be satisfied beyond reasonable doubt

irrespective of whether the jury rejects the accused's evidence was in fact put in a form

but, in our respectful submission, the criticisms

we make of the specific direction given in respect

of the applicant's evidence at the trial are not

Robinson 24 24/6/91

cured by that direction having been given as they

were not cured by the earlier directions given in
respect of the burden of proof and the requirement
of the Crown to establish the guilt of the accused

and not for the accused to establish anything to

the jury's satisfaction. I think the submissions

we made earlier in respect of that matter cover the

matters raised by my friend.

DAWSON J:  The Court will take a short adjournment to

determine the course which it will take.

AT 4.03 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.14PM:

DAWSON J:  The Court will grant special leave to appeal

confined to the specific issue raised by

paragraph 2(b)(i) of the draft notice of appeal, and special leave will be confined to that issue

alone excluding any other issues raised by

paragraph 2(b). Otherwise, the Court is of the

view that the matters raised do not warrant the

grant of special leave to appeal.

AT 4.15 PM THE MATTER WAS ADJOURNED SINE DIE

Robinson 25 24/6/91