Ryan v The Queen

[1994] HCATrans 63

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S76 of 1994

B e t w e e n -

CORY STANLEY RYAN

Applicant

and

THE QUEEN

Respondent

Application for special leave
  to appeal

BRENNAN J
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 11.08 AM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC:   May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the applicant.  (instructed by Coode, Scott & Corry)

MR P.C. BANNON, QC:   If Your Honours please, I appear with my learned friend, MR J.P. BOOTH, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR NORRISH:   If the Court pleases, this is a matter where an order for enlargement of time is required.  The basis for that application is set out at page 101 of the application book.

BRENNAN J:   What do you say about this, Mr Bannon?

MR BANNON:   It is not opposed, Your Honour.

BRENNAN J:   Time is extended, Mr Norrish.

MR NORRISH:   Thank you, Your Honours.  Directing the jury as to the evidence in a criminal trial and how it must be considered by regard to the burden and standard of proof, in our submission, is a fundamental direction to the provision of a fair trial according to law to an accused person.

BRENNAN J:   Is there any doubt about the principles as to the direction that should be given?

MR NORRISH:   Our submission would be, Your Honour, that whilst there may be no doubt about the principle as such, there is no decision of this Court which conclusively states the principle in the context of the particular problem that arose in this particular case.

BRENNAN J:   That rather makes it particular to this case, does it not?

MR NORRISH:   No, Your Honour.  We would respectfully submit that the need for appropriate and proper directions where the guilt of the accused turns upon a conflict between the Crown case and the defence case is an occurrence, whilst regular in the criminal trial process, requires clear statement from this Court so as to ensure that on every occasion where such conflict arises and it needs to be directed upon by the trial judge, that appropriate directions be given.

BRENNAN J:   Mr Norrish, there is no doubt that the direction that must be given is the usual reasonable doubt direction.  There is no doubt that the judge cannot tell the jury that they have to make up their mind between two competing versions and whichever one they choose, their verdict follows it.  What else is it?

MR NORRISH:   In this trial, this is exactly what the trial judge did.  One of our submissions is that the Court of Criminal Appeal erred in its holding that the judge did not leave the matter as a matter of choice between the complainant and the applicant.

BRENNAN J:   And that makes it specific to this case.  In other words, if the judge did what the Court of Criminal Appeal says that he did, then all is well.  If he did not do what the Court of Criminal Appeal said that he did, then all is not well.  But how do we take on board as a matter of special leave the question of whether or not the Court of Criminal Appeal was right or wrong in the view that they took of the trial judge’s charge to the jury?

MR NORRISH:   Your Honour, the primary basis of the application for special leave is the one that I outlined earlier and is outlined in the written submissions, and that is that there is no conclusive statement from this Court in respect of this very important issue.  We have the statement of Your Honour as one of the minority judges in Liberato.  With respect, Your Honour, we submit that that is a correct statement of an appropriate way in which the matter should be dealt with.

BRENNAN J:   There is no dissent by the majority on that proposition because it seems to me to be so ‑ ‑ ‑

MR NORRISH:   The majority did not deal with the matter.

BRENNAN J:   No.  It is so simple; it is so basic to it all.

MR NORRISH:   It is, and that is why the matter is of such importance, in our respectful submission.  If I could draw an analogy with a case that is not on our list of authorities and does not fall to be considered in this application, one could have said the same thing about the principle that was enunciated in Robinson v The Queen.  The issue is one so simple, so straightforward and so fundamental that one would have thought that ordinarily one would not need judicial pronouncement from this Court on the particular matter.  But the facts are that we have the situation where, in so far as High Court authority is concerned, the only specific reference that we could turn to as support for the proposition that we put on behalf of the applicant to the Court of Criminal Appeal is Your Honour’s judgment and Justice Deane’s judgment in Liberato being minority opinions in a case where special leave was refused.

We also have the situation of the Court of Criminal Appeal having, subsequent to the trial in this matter, determined the issue in a way which would ordinarily have been favourable to this applicant in the decision of Bernthaler, which is referred to in our written submissions.  We submit that it is appropriate for this Court to state as it did in Robinson the simple undeniable propositions which are advanced on behalf of this applicant and which were not applied in this particular trial.  The significance of the application for our client, the applicant, is that the consequence of His Honour’s directions was to cause what we would respectfully submit to be a miscarriage of justice, because one of the matters that the Court of Criminal Appeal addressed in its dismissal of the application was the fact that at the appeal there was no complaint made about the possibility that there was an alternative version or an alternative scenario to that described by both the complainant and the accused to outline what had happened between those two people.  Of course, that matter had been advanced on behalf of the applicant of the Court of Criminal Appeal hearing of the matter and it was in fact the very aspect of the matter that highlighted the vice of the directions that His Honour gave.

I appreciate that Your Honours state that the principle is simple, but if I may just very briefly take Your Honours to both what Justice Brennan said in Liberato and what Justice Badgery‑Parker said in Bernthaler.  In Liberato and Others v The Queen, (1985) 159 CLR 507, Your Honour Justice Brennan said inter alia at page 515 ‑ and it is cited in full in the outline of argument at paragraph 3.2:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question:  who is to be believed?  But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving.  The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence.  The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

If I may take Your Honours to the judgment of Justice Badgery-Parker in Reg v Jason Arthur Bernthaler, which is unreported, a decision of the New South Wales Court of Criminal Appeal of 17 December 1993.  At page 11, in dealing with directions which were given almost identical to the directions complained of in this matter except in the matter before this Court, His Honour on at least three occasions said, “One of them must be wrong”.  His Honour said at point 5 of page 11:

In those circumstances it was obviously the case that should the jury accept the version of events advanced by the two accused, they must reject the Crown case.  It must also ultimately follow that if the jury accepted the evidence adduced by the Crown, that would involve rejection of the case advanced on behalf of the accused.  However, there is a very grave danger in directing a jury in terms such as those which his Honour used.  The danger is that the jury will be misled into believing that their task is simply to determine which of two conflicting stories ought be accepted.  That is not their task.  The onus of proof being always on the crown to establish guilt beyond reasonable doubt, the question and the only question for the jury is whether the Crown has done that.  It follows that it is open to a jury to reject entirely the evidence adduced on behalf of the accused but yet not be satisfied of the guilt of the accused beyond reasonable doubt, by the evidence in the Crown case.  That possibility must be drawn to the jury’s attention and any direction such as his Honour chose to give here (which was not in itself wrong) must be accompanied by an appropriate reminder to the jury of the onus of proof and the standard of proof and a warning that it is not proper that they proceed directly from a decision to reject evidence adduced by the accused to a conclusion that the accused is guilty.

DAWSON J:   Does anyone doubt that principle?

MR NORRISH:   There is no doubt about the principle.

DAWSON J:   Then why should this Court take this case on?  You can give me the answer to that, but the only answer would seem to be that you suggest that that was not applied in this case.

MR NORRISH:   It was not applied in this case.

DAWSON J:   But that is something that does not warrant the grant of special leave.  This is not a court of criminal appeal.

MR NORRISH:   No, I appreciate that, Your Honour.

DAWSON J:   What you are saying, if you say that, is that this Court should intervene to maintain regularity in the courts below.  But the Court, if it is going to grant special leave for that purpose, will select its case very carefully, and this is not an appropriate case.

MR NORRISH:   Firstly, Your Honour, we believe that the judgment of Justice Mahoney discloses error in his analysis of the summing up and the effect it had in leaving for the jury to determine guilt, an issue of choice between the applicant’s case and the complainant’s case.  In our submission, that error of itself may not necessarily invite or warrant a grant of special leave, but what does warrant the grant of special leave, in our submission, is the need for this Court to clearly state appropriate directions to be given in this particular circumstance.

DAWSON J:   But you have confirmed that the principle is not in doubt; it has been reiterated time and again.

MR NORRISH:   As my learned junior very kindly points out to me, the Court of Criminal Appeal in its judgment in this case did not say when a trial judge refers to inconsistent accounts that the trial judge must always give directions such as those suggested or held to be appropriate in the judgment of Justice Brennan in Liberato.  The Court of Criminal Appeal said that it is only enough to direct the jury that the choice, that is the choice between the complainant’s and the accused’s versions, if that be the particular conflict which will determine the guilt of the accused, does not determine the issue.

DAWSON J:   There is nothing said that was inconsistent with what was said by Justice Brennan in Liberato.

MR NORRISH:   Yes, but the main point that we can advance on behalf of this applicant is that there is a need for a clear statement from this Court to that effect.

DAWSON J:   There is a very clear statement in the passage you cited.

MR NORRISH:   In Liberato?

DAWSON J:   Yes.

MR NORRISH:   Of course, Your Honour, but it is a judgment of one of a minority in circumstances where special leave was refused on the basis there was no error in the judgment of the Court of Criminal Appeal.  It could be said that, notwithstanding that, what Justice Brennan said in Liberato is persuasive upon trial judges throughout this Commonwealth but, in our submission, the effect of a minority judgment does not ‑ ‑ ‑

DAWSON J:   And you have what Justice Badgery‑Parker said as well.  I would have thought it was first principle, is it not, and there is no doubt at, all and there was nothing that was said by the Court of Criminal Appeal which was inconsistent with those first principles.

MR NORRISH:   It is first principles, but sometimes, as I said earlier in relation to the matter of Robinson, first principles need to be spelt out.

DAWSON J:   That is the point.  If it is a case of granting special leave to maintain regularity in the courts below, then this would not be an appropriate case.  We would need a clearer case than this.

MR NORRISH:   One of the matters that arises ‑ ‑ ‑

DAWSON J:   You see, this is no criticism of you and I do not want to take up your time, but it is becoming increasingly evident that people are treating this Court as a court of criminal appeal in applications for special leave to appeal, and the message must be got home that it is not that, that it is only where some point of principle is involved or where a decision is necessary to maintain regularity in the courts below that special leave will be granted.  It will not be granted merely to correct possible wrongs or even wrongs.

MR NORRISH:   We submit in our application that there is irregularity between the effect of this decision and the decision of the Court of Criminal Appeal in Bernthaler.  The other problem is, as was made apparent by the way in which the matter was dealt with by the Court of Criminal Appeal, no objection was taken by counsel for the applicant at the trial.  Our submission is that on a matter so fundamental as this, the matter cannot be resolved simply by the conduct of counsel at the trial.  It is in a similar situation to the issue that was discussed by this Court in Pemble of putting defences that are available to an accused person, notwithstanding the fact they are not raised on his behalf at the trial.

The applicant’s counsel obviously in this trial ran it on the basis that it was a battle between the competing versions, but that did not withdraw from the trial judge the responsibility of putting appropriate directions on something so fundamental as the burden of standard of proof so as to enable the jury to understand how it could treat the conflict that they had to consider between the complainant’s account and the applicant’s account.  In our submission, that aspect of the matter is a matter which of itself is worthy of a grant of special leave.  That is placing upon trial judges the responsibility to deal with factual matters as they relate to legal issues, notwithstanding the manner in which the case has been run on behalf of the applicant at the trial.

Of course, I might say, Your Honours, that without seeking to overstate the situation, it is often the case in this State that trial judges would not follow what Justice Brennan said in Liberato.  It is not an uncommon situation where cases turn upon a conflict between an accused person and the principal Crown witness, that the trial judge will do as this trial judge did, give directions in relation to the onus and standard of proof in relation to various contexts and then go on to assess the evidence.  I am not suggesting that trial judges will go to the extreme of making the matter one of choice, as we say the learned trial judge did in this trial, which the Court of Criminal Appeal found that he did not, but certainly they do not regularly provide the sort of guidance to juries which, with the greatest of respect to Justice Brennan’s judgment, Justice Brennan’s judgment in Liberato makes plain ought to be provided to juries to assist them to understand how these conflicts can be resolved.

The problem is that juries might think as a matter of common sense, “If we accept one and reject the other, therefore the accused must be guilty if we accept the evidence of the complainant”, but there is middle ground there that they have to consider, commensurate with their responsibility to be satisfied of guilt beyond reasonable doubt.  In our submission, once again, guidance from this Court will be of great assistance to trial judges and counsel alike to ensure that juries are properly directed when such a situation arises.  Of course, where there be direct conflict in sworn evidence between one witness in the Crown case and the accused, the issue of reasonable doubt and the way in which it is to be considered by the jury is a

very, very significant matter in a trial.  May it please the Court.

BRENNAN J:   Thank you, Mr Norrish.  We need not trouble you, Mr Bannon.

It is clear that in a criminal trial where there are two versions of the facts deposed to by a prosecution witness and a defence witness respectively, the jury must not convict merely because they prefer the evidence of the prosecution witness or because they choose one rather than the other.  The onus and standard of proof require that the jury be directed that before they convict they must be satisfied of the guilt of the accused beyond reasonable doubt.  That proposition is a commonplace.  The question whether that proposition has been applied in a particular case is not a matter which requires a grant of special leave to appeal.  Accordingly special leave to appeal will be refused.

AT 11.26 AM THE MATTER WAS ADJOURNED SINE DIE