RPS v The Queen

[1999] HCATrans 37

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S116 of 1998

B e t w e e n -

RPS

Appellant

and

THE QUEEN

Respondent

GAUDRON J
McHUGH J
GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 MARCH 1999, AT 10.26 AM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC:   May it please the Court, I appear with my learned friend, MS B.J. RIGG, for the appellant.  (instructed by Uther Webster & Evans)

MR G.S. HOSKING, SC:   If your Honours please, with my learned friend, MR A.M. BLACKMORE, I appear for the respondent.  (instructed by the Director of Public Prosecutions (New South Wales))

GAUDRON J:   Yes, Mr Bellanto.

MR BELLANTO:   Your Honours, may we just invite the Court to note some minor corrections to the submissions of the appellant.  On page 4, fourth line, the appeal book reference should be 340.55 and on page 19, paragraph 90, the penultimate line in that paragraph refers to a number of references in the appeal book.  Would your Honours insert after the reference 165.18, 166.15-167 and in the last line of that paragraph, the reference to E should be 465, not 38.  Finally, on page 20, paragraph 95, would your Honours delete the references in the final line of that paragraph.  They are picked up in the earlier paragraphs, paragraph 90.

Your Honours, it is proposed to advance arguments in the same order as the written submissions.

McHUGH J:   Before you embark on your submissions, can I raise with you this question:  notwithstanding the detail of your submissions, there is no objection to the direction at 348 concerning taking into account the accused’s failure to give evidence.  Now, I know that direction has been given in some form or another or close to it, ever since Guiren’s Case in New South Wales, but have you got anything to say about it?

GAUDRON J:   And also over to page 349, to similar effect, where it was said:

but you are entitled to conclude, from the accused’s election not to deny or contradict that evidence that his evidence would not have assisted him in this trial.

MR BELLANTO:   Well, that does not water down the responsibility of the prosecution to prove the case by admissible evidence, and it is the evidence that was admitted which has been described as the partial admission evidence that we argue should not have been received before the jury.  It is the interpretation of that evidence which his Honour described as an admission of digital interference with the girl.  Now, it is the appellant’s argument that that evidence simply should not have been received and if it was not received, then it has an important impact on the material that was before the jury and the ultimate findings of the jury.

GUMMOW J:   I am not sure you perceive what has been put to you.

GAUDRON J:   The question is whether that direction was erroneous.

MR BELLANTO:   But your Honour has just taken  ‑ ‑ ‑

GAUDRON J:   In brief terms, for cutting across the right to silence.

MR BELLANTO:   Pardon, your Honour?

GAUDRON J:   For cutting across the right to silence.

MR BELLANTO:   Yes.

GAUDRON J:   And for, to some extent, interfering with the ordinary onus of proof.

MR BELLANTO:   Yes, would your Honour Justice McHugh just take me to the beginning of that passage please?

McHUGH J:   The passage starts at 348. 

In the present case, however, the Crown asks you when judging the value of, the weight of, the evidence…..to take into account the accused’s election not to deny or to contradict the matters about which he could have given direct evidence from his own personal knowledge.  That is indeed a circumstance which you are entitled to consider -

MR BELLANTO:   Yes.

McHUGH J:  

That is, the fact that accused has elected not to contradict the evidence given by Mrs Tarr –

and then his Honour goes on and the passage finishes over on 349 where his Honour says at line 10 through to 25:

If you are satisfied that the accused could have given evidence from his own knowledge of the events about which Mrs Tarr and Isis Wheelahan have given evidence for the Crown, if you are satisfied that it is reasonable, in the circumstances, to expect some

denial or contradiction…..then you are entitled to conclude…..that his evidence would not have assisted him in this trial.

MR BELLANTO:   Yes; again, picking up what I said a moment ago, the obligation on the Crown is to prove the case, and his Honour, in using that phrase, brought before the jury material that they may have thought rested upon the accused to discharge some sort of onus by giving evidence.  We would say that that is not appropriate.  As the presiding judge has said, it cuts across the responsibility of the Crown to prove its case beyond reasonable doubt.

GUMMOW J:   The question then is what happened to your notice of appeal?

MR BELLANTO:   The notice of appeal does not pick up that point, and as it is obviously an important matter, we would seek leave to amend the appeal to include a ground that his Honour erred in giving that direction that your Honour Justice McHugh has referred to.

GAUDRON J:   What do you say to that application, Mr Hosking?

MR HOSKING:   The first thing I say, your Honours, is that I am somewhat taken by surprise.  As your Honours appreciate, we have not traversed this matter at all.  To be candid, whatever view your Honours take about this application we simply could not meet this ground today because, not only for the reason that we have not considered it yet, but it has extremely important implications for criminal trials, generally.

If your Honours were minded to grant my learned friend’s application, we would have to ask your Honours’ leave to put in supplementary written submissions on the point because we cannot meet it today.

McHUGH J:   It is an important point.  I mean, the passage at 349, I think, goes beyond what I can recollect of practice at the New South Wales Bar.  It stems from Guiren’s Case from recollection which, I think, was around 62 SR  or 79 WN and judges used to give directions in accordance with what is at 348 fairly regularly in New South Wales in my experience.  The passage on 349 seems to have boosted it up another gear.

MR HOSKING:   I do not know that I will respond to that, your Honour, save for indicating that I have heard that.

McHUGH J:   And it has to be read in the light of, for instance, the development of the law in say Robinson’s Case and those other cases that follow Robinson.

MR HOSKING:   Yes, yes.  Well, it covers a wide field, as your Honour indicates.

McHUGH J:   Yes.

MR HOSKING:   Of course, section 20 of the 1995 Evidence Act which has its Commonwealth parallel deals with this question also so that is something to be dealt with.

HAYNE J:   And no doubt in light of the statutory provisions about who may and may not comment on the failure of the accused to give evidence.

MR HOSKING:   Well, that is another aspect, yes, for your Honour, with respect.

HAYNE J:   Some of us coming from jurisdictions where judges cannot.

MR HOSKING:   Yes, yes.  As to the application itself, I do not think we are in a position to consent to the application.

GAUDRON J:   No.

MR HOSKING:   It is a matter for your Honours as to whether your Honours think it is appropriate.

GAUDRON J:   Mr Bellanto and Mr Hosking, at the moment we consider that the point raised by reference to that direction at 348 and 349 is one that should be considered by the whole Court.  W are minded to grant your application to amend the notice of appeal but if this is to be dealt with by the whole Court there does not seem to be much point in proceeding further today, does there?

MR BELLANTO:   No.

McHUGH J:   A matter that concerned to me to some extent is the question of the appellant’s costs.  Can I ask?  You do not have to answer.

MR BELLANTO:   Legal Aid.   It is legally aided.

McHUGH J:   Is it likely legal aid would be extended to another day for full argument.

MR BELLANTO:   Your Honour, I think they would be unusually harsh if they did.

GAUDRON J:   Your instructing solicitor is nodding to the effect that you - - -

McHUGH J:   It is a very important point which affects practice throughout the whole of Australia, particularly having regard to section 20 of the Evidence Act.

MR BELLANTO:   Yes.  Thank you, your Honours.

GAUDRON J:   When would you amend the notice of appeal?  Within seven days?

MR BELLANTO:   Yes.  Thank you, your Honour.

GAUDRON J:   Yes.

MR HOSKING:   Your Honours, may I just point out one matter that your Honours will recall that the Chief Justice sat on the original appeal ‑ ‑ ‑

GUMMOW J:   It can only be six.

MR HOSKING:   Six.  Yes, I just thought I would remind your Honours of it.  Thank you.

GAUDRON J:   Yes.We will adjourn briefly to consider whether we will in fact adjourn until a larger Bench - given Mr Hosking’s information that the Chief Justice cannot sit; so we will adjourn briefly.

AT 10.40 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.56 AM:

GAUDRON J:   Mr Bellanto, Mr Hosking, we are of the view that the matter should be heard by a Bench of six, it being a very fundamental point that goes really to the root of the criminal trial and raises important questions about the operation of the Evidence Act and will, of course, therefore have ramifications far beyond the criminal trial in New South Wales or a criminal charge of this kind.

It is thought that the more convenient course would be to adjourn it generally, allow you to file a fresh notice of appeal and to file fresh written submissions which deal with the point in some detail and then relist us the matter.

MR BELLANTO:   Your Honour, can I just raise one matter.  We would seek leave to amend the appeal book.  Your Honours would note that there is a passage in the lower court relating to the failure of the accused, or the appellant to give evidence.  At the end of the Crown case learned counsel called a witness and his Honour said, “No you will not, you will call your client”.  And he said, “No I call Miss So-and-So”, and his Honour said, “No, you have to call your client”.  Then the jury went out, there was some discussion, and we would like to incorporate the transcript of that discussion, which was raised in the court below, as a separate ground, but not in this Court because it may have a relevance to the amended ground.

GAUDRON J:   Yes, there is no difficulty about your putting in supplementary documents, are there?

MR BELLANTO:   Thank you, your Honour.

GAUDRON J:   You do not object to that course?  I mean, it may well have a bearing on this particular direction.

MR HOSKING:   It will be necessary, and with respect, yes.

MR BELLANTO:   Thank you, your Honour.

GAUDRON J:   I think we perhaps should have some specific times.  I cannot tell you at this stage when the matter would be called on, but I think it would be advisable if you did your fresh written submissions within 21 days and the Crown to reply within 14 days.  If it turns out that the hearing date is either earlier or significantly later then you can apply to the Registrar to alter those times.

MR BELLANTO:   Thank you, your Honour.

GAUDRON J:   I think I should tell you that endeavours will be made to have it listed in May.

MR BELLANTO:   Thank you, your Honour.  If the Court pleases.

GAUDRON J:   The Court will now adjourn until 10.15 am tomorrow morning.

AT 10.59 AM THE MATTER WAS ADJOURNED