Schultz v The Queen

[1998] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A58 of 1997

B e t w e e n -

JAMES MATTHEW SCHULTZ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 AUGUST 1998, AT 2.43 PM

Copyright in the High Court of Australia

MRS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR C.J. KOURAKIS, QC, for the applicant.  (instructed by Bill Morris & Associates)

MS W.J. ABRAHAM:   May it please the Court, I appear with my learned friend, MS S.V. DAVID, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

MRS SHAW:   Your Honours, the special leave question raised by this application is whether it is consistent with the rights of an accused to a fair trial that, firstly, a judge in his summing up is entitled to advocate for the guilt of an accused and, secondly, whether he is entitled, without notice, to introduce into his summing up matters of theory or argument which are critical to the disposition of an issue raised by the defence.  In the Supreme Court of this State the justices have expressed themselves as being in conflict and have described the differing views as being the traditional view and the opposing view.

GLEESON CJ:   Where do we see that?

MRS SHAW:   We see that set out in the judgment of his Honour Justice Cox in Reg v D (1997) 68 SASR 571, in particular at page 579, No 1 in the extracts of cases. His Honour identifies at page 579 in the last paragraph:

The traditional position, as I understand it, has always been that a trial judge is entitled to comment on the evidence, whether favourably to the prosecution or the defence, as long as the effect of his remarks is not to overbear the jury.

The opposing position -

which appears further down -

is that, if the jury is to decide the facts, the judge should leave them to do it and not try to influence their decision.  It is no use saying that the jury is entitled to ignore the judge’s comments when the whole purpose of them is to ensure that the jury takes them into account.  Coming from the judge, his remarks are liable to be given considerable weight.  There is a danger, therefore, that any such judicial intervention, if it is critical of the defence, will make the trial unfair.

His Honour went on to conclude at page 584 of the extract that the previous decision of this Full Court in Reg v Machin which was a decision of three judges, unanimously, was in effect decided per incuriam.  But, the history of Reg v Machin was that indeed his Honour Justice Cox was the trial judge whose summing up was under scrutiny in Reg v Machin and his Honour Justice Cox concluded in the last paragraph on page 584 that:

The authority of Machin is not a merely theoretical question.

GLEESON CJ:   What did Machin decide?

MRS SHAW:   Machin decided, your Honour, critically, and his Honour Justice Olsson J in the next extracted case - I can take your Honours to it quickly.  Machin is reported in 68 SASR 526 at page 540. The critical line drawing that his Honour Justice Olsson drew in Machin’s Case was following the dictum of his Honour Justice Southwell in Nation that to tell a jury that they should have no difficulty in making adverse findings against an applicant in relation to critical issues and, effectively, was tantamount to telling the jury in that case that they would have no difficulty in convicting the applicant and it ‑ ‑ ‑

GLEESON CJ:   May I ask a question about procedure in South Australia, Mrs Shaw?  Who addresses last at a criminal trial in South Australia?

MRS SHAW:   The accused.  The accused has the right of reply in every instance.

GLEESON CJ:   Is that a right of reply or a right of final address?

MRS SHAW:   A right of final address.

GLEESON CJ:   In New South Wales the order of address is that the prosecutor addresses and then the accused.

MRS SHAW:   Yes, the history is, your Honour, briefly, that we used to have an unsworn statement and it was regarded as a bit of a trade off.

GLEESON CJ:   Yes, I understand that but that order of addresses produces the practical consequence, does it not, that it will often be appropriate for a trial judge to express views on factual arguments?

MRS SHAW:   Certainly, but the difference that is being considered in Machin’s Case is if the comment on the factual argument is effectively a debunking of the defence case or is - there is an expression here by the trial judge “adverse to the defence on a critical issue” then the summing up then must become unbalanced because the due ‑ ‑ ‑

GLEESON CJ:   Can a trial judge not point out a weakness in the defence argument?

MRS SHAW:   Yes, your Honour, not at all, that the ‑ ‑ ‑

GLEESON CJ:   And it may be, having regard to the order of addresses, a weakness the prosecutor has not had the opportunity of pointing out.

MRS SHAW:   Certainly.  Absolutely no question about that.  What we are here considering is whether or not the judge is entitled, as his Honour Justice Cox had done in Machin, as the Acting Justice King had done in this case, was at the conclusion of the summing up, after he has completed all his directions on the law, after he has presented the case for the accused, the case for the Crown, their respective defences, in a supplementary type direction to give to the jury an approach to the ultimate resolution of the accused’s guilt which at every step has the result, if the jury follow his suggestion and his recommendation, they will find the man guilty.

GLEESON CJ:   I had not noticed, but I may have overlooked it, any reflection in the judgments of the Court of Criminal Appeal in the present case of any conflict of authority.

MRS SHAW:   Yes, in fact, indeed, the Court of Appeal includes his Honour Justice Millhouse who was a member of the court in Machin and who said in the course of his judgment at page 143 of the appeal book - commencing at 142 he sets out the two conflicting positions which his Honour Justice Cox had identified in R v D and he effectively is suggesting that perhaps his Honour Justice Cox is right and that although Machin was correct on its facts, Machin (No 1) could not be relied on as authority.

GLEESON CJ:   Well, he said that the view of Justice Cox was the traditional view.  He said that his view, which he expressed in Machin, was not good law.

MRS SHAW:   Yes.

GLEESON CJ:   Are you seeking to invite us to determine that he got it right the first time and wrong the second time?

MRS SHAW:   Yes.  Well, his Honour Justice Olsson maintains he got it right in Webb, in a subsequent case, when the Full Court again considered this question and in this case his Honour Justice Bleby decided it was not necessary to resolve the dispute.  That appears at page 156 of the appeal book.

HAYNE J:   But nor do I understand you to invite us to resolve the dispute because, at least as I understand the submission, it is that the traditional position, so described, is the one that obtains, a judge may comment, but not overbear.

MRS SHAW:   Quite the opposite, your Honour.  This was a case where the trial judge at the end of his summing up did commence to systematically debunk each and every potential issue adverse to the accused.

GLEESON CJ:   That is what you say the facts are but what do you say is the principle?

MRS SHAW:   The principle is that a trial judge is not entitled to attempt to influence the jury to the ultimate conclusion of the accused’s guilt and that ‑ ‑ ‑

GLEESON CJ:   Do you quarrel with the traditional view?

MRS SHAW:   The traditional view, in my submission, does not include that premise.

GLEESON CJ:   I understand that.  Do you quarrel with the traditional view?

MRS SHAW:   I quarrel with his Honour Justice Cox’s description of the traditional view.  His Honour Justice Cox’s description of the traditional view, by way of saying the opposing view is not correct, is that he takes the view he is entitled to influence the jury in relation to its ultimate conclusion of guilt.

GLEESON CJ:   Can you take us to the offending part of the summing up?

MRS SHAW:   Yes.  At page 111 of the application book, your Honours.  As I said, his Honour had completed all of his relevant directions.  He commenced then - I should tell your Honours that the Crown alleged joint enterprise and to some extent the accused were blaming each other but the applicant Schultz, be it by reason of a predisposition to dissociate, supported by psychiatric evidence, in the alternative was effectively saying, “I may have done it but I don’t remember doing it” and there is an issue of voluntariness because of lack of memory and then there is also included in that an issue of intoxication which bore upon intention and an issue of provocation.

Bearing in mind that as between the two accused they were blaming each other and his Honour had put to the jury that there was an issue as to whether or not Schultz, this applicant, did commit the fatal acts, his Honour then, at this point, says to the jury:

I’m going to suggest a possible approach to this case -

and he says what I say about the facts is for you but I am going to put this to you for assistance.

If my approach to the case doesn’t commend itself to you then you put that aside and take your own view.

So, he is inviting the jury to consider his approach, effectively, first.  He then goes on to tell the jury that they will be left with no doubt that it was the applicant Schultz who in fact inflicted the fatal blows and that as for the dispute between the accused  they should not have any problem finding that.  Thank you.

HAYNE J:   I am sorry, where does he say that?

MRS SHAW:   He says that at line 25.

Now, you may think.....that whoever wielded that object got a considerable amount of blood.

The evidence was that Schultz had the blood.

And you may conclude that James Schultz had a considerable amount of blood on his clothing.  Longman had none or virtually none.  And if there was nothing more to it than that, putting aside Longman’s evidence, and putting aside what Jamie Schultz is alleged to have said to people -

which were alleged admissions -

if there were nothing more to it than that, it might lead you to conclude beyond reasonable doubt that the person who wielded the object - was Jamie Schultz.

So, that is the first issue of who did it.  The next one which was the crucial defence of the accused, or the crucial issue raised, was the question of voluntariness and when he addresses that at page 112 he refers to Dr Raeside’s evidence whom he already canvassed before.  Line 4:

It’s one thing to have a general psychological theory that these dissociative states can occur in people with post-traumatic stress disorder, as Schultz has, but you have to look at the evidence.

He then says:

You may find it is very difficult to find anything, any indication at all in the evidence that Schultz was subject to a dissociative state at the time of this incident.  And indeed, you may think, it’s for you to say, that really the evidence so far as it goes, is quite inconsistent with that.

He then goes on to present an analysis of the psychiatric evidence juxtaposed against the accused’s evidence and puts to the jury an argument that dissociation could only have arisen at a time when the accused had the deceased on his knees and no longer felt trapped, so, therefore, as he said at the bottom of the page -

you might think, that if it was going to happen, that it would have when he was being, as he claims, restrained -

and then he goes on to say at line 4:

You must ask yourself how could he possibly have felt trapped at that stage, or subject to any restraint at all?  The deceased was out of the situation;  he had already got on top of him, and he was down.

Now, that was a ‑ ‑ ‑

HAYNE J:   Is it part of your complaint that in these passages the trial judge failed to, or omitted to refer, to contrary evidence that might have controverted the theory then under discussion?

MRS SHAW:   Yes, there are two complaints.  One, that he failed to refer specifically to evidence which did undermine that theory and that was raised by Mr Griffin, who was counsel, seeking a redirection, commencing at page 122 of the appeal book when he takes issue with his Honour telling the jury at the bottom of the page -

that they could consider those purposeful actions as being matters to consider -

and he put to his Honour what he had said.  At line 9 he says:

The point I ask your Honour to draw to the jury’s attention there, is that there’s never any suggestion in the forensic psychiatric evidence to say that a deliberate purposeful action, such as punching, is inconsistent with a dissociative state happening at the time.

So, he is putting to his Honour, “What you have said is not supported by the evidence, it was not a theory that was countenanced by anybody in the trial”, and he says:

So, there is no inconsistencies between the evidence of Mr Schultz, about him remembering punching the man, and him actually then being in some complete or partial dissociative state.

He then goes on to tell him that when his Honour posed the question to the jury, rhetorically, as if there was no answer that indeed there were two answers.  Line 20:

he may have been in a dissociative state from the time he was restrained -

so, thereafter he was effectively in a partial dissociative state, and, secondly, that the infliction of the trauma might itself have caused a loss of memory for the actions.  So, Mr Griffin takes issue with his Honour effectively taking away from the jury in reality what was fundamental to the issue raised by the accused.  He also took issue with his Honour, effectively being critical of the issue of provocation because it was not consistent with the evidence.  His Honour refused to redirect on any of those matters.  Your Honours, just to complete the picture on that, when his Honour having completed his summary of his argument, which was a fresh argument, to debunk the psychiatric evidence, at line 7 he says:

So really, when you analyse the evidence in this case, you must ask yourself, is there any possible basis here for supposing, even as a reasonable possibility, that this accused, whatever about general psychological theory and what can occur, whether this accused, in this case, on the evidence, suffered this dissociative state ‑

and he goes on to say -

and whether there is really anything in the evidence to suggest other than Schultz’s actions were subject to the direction of his mind and his will -

He says after that these “are matters for you” but he had already told them that if his approach did not commend itself then they were to put it aside.   It is my respectful submission, they would have been hard pressed to put it aside, bearing in mind they had heard no counter argument to it.  He then goes on, in my submission, to cement the force of his argument of guilt by telling the jury in relation to Longman, the co-accused at page 115, line 32 when he ‑ ‑ ‑

GLEESON CJ:   `Mrs Shaw, the complaint that was made to the Court of Criminal Appeal about this direction and the argument you are advancing followed an earlier argument that was put and that was rejected by the Court of Criminal Appeal, and you see it being put and rejected, for example at page 131, line 20.  Now, look at the commencement of the last complete paragraph on page 131.

MRS SHAW:   Yes, your Honour.

GLEESON CJ:   What the Court said was, as I understand it, there is just no evidence to support Dr Raeside’s theory of a dissociative state, and that is the same thing as the trial judge said, is it not?

MRS SHAW:   Well, your Honour, the error in that approach is that there was clearly evidence of a dissociative state.  The approach the Court of Criminal Appeal took, well, because Dr Raeside and his account did not fit hand in glove, word for word with what the accused said, then the theory or the evidence of Raeside and the accused’s evidence of loss of memory, feelings of being trapped an so on went nowhere.

GLEESON CJ:   You are not seeking in this appeal to challenge the rejection of the ground of appeal that was argued on page 131, are you?

MRS SHAW:   Well, I am, your Honour, in that what the complaint is about the Court of Criminal Appeal is that when they came to look at the issue of whether or not the evidence ought to have been led rather than considering was there evidence - on all of the material in the case was the issue raised, what they said was, “Did the accused’s evidence, on its own, fit hand in glove with Dr Raeside?”

GLEESON CJ:   Well, they actually said there was no evidence.

MRS SHAW:   Well, that was not correct because the accused had given evidence of his history, of his previous disposition or dissociation.  Dr Raeside had given evidence that he had post-traumatic stress disorder - that was not challenged - and he gave evidence that the circumstances in which the accused found himself, in view of his predisposition to dissociate,

were consistent with someone who could dissociate at that time.  It was not necessary for the accused to persuade on a balance of probabilities that he had evidence.  All that the accused had to do, or where the obligation for the direction - a fair direction arose, if an issue of voluntariness was raised in the case and that is what the High Court held in Falconer v The Queen.

GLEESON CJ:   What about what appears on page 140 at line 18?

MRS SHAW:   Well, your Honours, the judge suggests Mr Griffin did not develop his argument.  Mr Griffin addressed the jury on voluntariness, he addressed the jury on every defence and he effectively commended to the jury Dr Raeside’s evidence.  Now, he was running four alternative defences and he was raising the issue and expecting the judge, in view of his request for redirection, to lead it fairly.  Now, it clearly explained that the tactics of defence counsel do not govern the obligations of a trial judge as to what issues they leave.  That is plain from Pemble v The Queen.  It is not a question of what is joined between the Crown and the accused.  If the Crown has the burden of proof of voluntariness and there is material on all of the case that raises it as issue, it must be left.

Now, whether it is strong or weak in the end might be relevant to the proviso but it does not preclude or remove the obligation of the trial judge to give proper fair directions and have it left.

GLEESON CJ:   But if the judge leaves it, if it is weak, the judge is entitled to point that out, is he not?

MRS SHAW:   Well, your Honour, he might be able to point out its strength but in this case it is not a question of pointing out its strength.  We are a step beyond that.  The complaint is that he is advocating its rejection so that there is a conclusion of guilt and the evidence, as it was, was not just for seal mouthing, to use expressions in other cases, evidence called from a psychiatrist, evidence of the accused explaining circumstances that he did feel trapped, that he did have a revival of memory that made it an issue that was entitled to be fairly left.  It was not just something raised in his address.

GLEESON CJ:   Thank you, Mrs Shaw.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, the fundamental basis of my friend’s application is, indeed, a challenge to the trial judge’s right to make comments to the jury, and I will go in a moment to the context of this trial because, in my submission, it is very important to consider the comments made in the context of the trial.  But before doing so, I want to make some comments about my friend’s submission that the law in this State is that there are two positions as to whether or not a trial judge can make comments to the jury, and one position has been referred to as the judicial position and the other has been referred to as the position that was in Machin.

It is important, in my submission, to understand that until Machin there was a very long line of authority, not only in this State but, of course, in the High Court about a trial judge’s ability to comment on the facts and, of course, the strength of the comment is a matter for the trial judge.  Indeed, there is always the right of an appellate court to intervene if it is overbearing.  Then there was Machin.  Machin was followed in this State by three cases in very quick succession:  Webb, D and this case of Schultz.

Now, the decision in Machin, in my submission, has been clearly shown to be inaccurate as to the traditional statement of the law, and his Honour Justice Cox in D, indeed, demonstrated that.  But what is important, in my submission, is that there is really not a distinction between the two positions but if one really considers those four cases in sequence, what one has is an acceptance of the right of a trial judge to make a comment.  However, Justice Olsson’s view is very conservative in the sense of how much a comment would be required to take it into the “overbearing the jury” category and, in my submission, that is the only distinction.

The Court of Appeal in Machin, indeed, consisted of Justice Olsson, who wrote the leading judgment, and Justices Williams and Millhouse.  Since that time both Justices Williams and Millhouse have commented on this very point.  Justice Williams in Webb, after considering a good deal more authority than was cited to them in Machin, considered Machin to have been decided per incuriam and considered that what they stated about the law was, in fact, not correct.

His Honour Justice Millhouse, in this case, went as far as saying he was wrong.  The third of the judges, Justice Olsson in D, at page 553, really explained what his comments in Machin meant and it was not to mean that nobody, or no trial judge could ever make a comment, to the contrary.  Of course, there is this well-recognised right but, of course, it is a question of fact and degree and Webb was decided on that basis.

GLEESON CJ:   I should have thought it was a right that is of particular practical importance when the accused has the right of last address?

MS ABRAHAM:   Yes.  Indeed, in my submission, when one looks at the authorities and looks at the role of a trial judge in addressing the jury, in my submission, a very important right and the question must come down to the individual cases whether, in the individual cases, the trial judge has overborne the jury to such a degree that, really, there is no decision left for them.  In my submission, this case clearly does not fall within that category.

So although the position is a well-established position, it is a question of degree and it is not, in my submission, a situation where, in this State, in reality, there is a divergence of opinion.  It is a situation of one of the justices, Justice Olsson, recognising the position but having what I would regard or categorise as a fairly conservative view as to what would be necessary to step over into that.  

It is important, in my submission, to consider Machin because what his Honour Justice Olsson relies in Machin is cases which were not cases from this State.  He relied on a minority decision of the court in Canada and relied on two Victorian decisions which dealt not with the summing up but intervention of a trial judge during the course of the trial and to summing up, and very extreme cases.  So, in my submission, in reality, no conflict.

If I could turn then to this particular case and put what his Honour said in context here.  It is very important, in my submission, to bear in mind that what was occurring in this case was an accused running alternative defences and so what the jury had were two accused, and in relation to this applicant, four alternative defences.  In my submission, it was important in those circumstances for the trial judge to assist the jury in any way he could, in particular where some of these defences relied on psychiatric evidence.  The psychiatric evidence of Dr Raeside, in my submission, fell far short of the state of the evidence as my friend suggests.

In my submission, all Dr Raeside does in this case - and this is the fundamental problem for the applicant - is talk about dissociation generally and then said that once the accused got to a position that he said he was in, namely, he felt trapped, he could do one of four things or, rather, he might do one of four things.  He might fight his way out of it; he might dissociate; he might lose self-control; or he might, because he had been drinking, have acted in any one of those ways because of the inebriation.

GLEESON CJ:   Or he might commit homicide.

MS ABRAHAM:   That is exactly right, your Honour.  However, what Dr Raeside did not do is take it any further than that.  The evidence was, from the applicant himself, that he indeed fought his way out; that he inflicted blows on two occasions; jumped back; saw the man on the ground and then went up to him, punched him a couple of times in the face, out of anger.  He then fell on top of him, got up, and left the unit, leaving behind the co-accused, Mr Longman, who had started hitting, on his case, the victim.  In my submission, leaving, on the applicant’s evidence, very much remembering what he did in the flat and it being an intentional act.  There was no evidence from Dr Raeside that addressed that at all, from the applicant’s point of view, even accepting his scenario.

Indeed, there was a good deal of evidence in the case that confirmed that the applicant knew well and truly what he had done and this evidence is in the form of admissions shortly after the events.  So, what his Honour was left with in summing up is the Crown having addressed - clearly the Crown case was it was murder and the Crown rejected any suggestion of dissociation.  The Crown said what the accused said happened in the flat just did not happen.  They had the defence address which did not, in my submission, develop the point of dissociation, as his Honour Justice Millhouse points out in the Court of Appeal judgment.  It just was not developed. 

It is not a situation, in my submission, where you have, as my friend suggests, plenty of evidence - got a predisposition via the applicant to dissociate.  In my submission, there is just no such evidence and, in my submission, it is a situation where you would have thought, if there had been evidence and the defence were well and truly relying upon it, that in their address they would have put reasons why, on the evidence, it would create a reasonable doubt about the voluntariness aspect.  None of that was done.  In my submission, none of it was done, clearly, because there was just no evidence to support it.

So, the trial judge was faced with a situation where there was this theory before the jury, one of a number of defences, and the trial judge, in my submission, quite properly said to them what they had to do was look at that evidence against what even the applicant says, and that is all he did.  In my submission, it is not a situation of putting an argument advocating his guilt.  What he did was measure the two lots of evidence, one against the other, as to what he said he did in that flat at the time of the killing, and that was exactly what the jury had to do, in my submission.  There had been no assistance on that, and the jury were entitled to have that put to them.

It is important, your Honours, that it was put well and truly in the context where all the defences had been put and put very clearly to the jury.  At pages 98 to 108 of the application book, the learned trial judge goes through the applicant’s evidence, the alternative defences; he goes through Dr Raeside’s evidence and how that all fits in.  So, the jury had before them all the arguments that were being put by the defence.  The jury also had before them, in my submission, very strong directions concerning the facts were for them and nothing the trial judge did, if they did not agree with it, were they to accept, and that occurred throughout the summing up.  From the very first page that is highlighted and it continues in this direction.  Not

only does it continue in this direction but in the direction complained of there is also repeated reference to the onus and burden of proof, emphasising that if there is any doubt whatsoever of course it must go in favour of the applicant.

So, in my submission, on the facts, the Court of Appeal correctly interpreted the proceedings at first instance.  There was no evidence of dissociation.  In my submission, what his Honour the trial judge did was proper in the circumstances and, indeed, inevitable.  There was no argument to put contrary, in my submission.  One could not put, as my friend suggested, “Well, he might have gone into a dissociated state.”, from the outset it being partial and then total; just no evidence of it.  It was purely a theory.  Dr Raeside was never asked those questions.

So, in my submission, in this particular case, leave ought to be refused on the factual aspect, the context of this summing up, but also, in my submission, this decision does not illustrate any difference in approach by this State to the question of whether a trial judge can comment to the jury, a very well-established right.  All it is is the application of well‑established principles to the facts.  Those are my submissions.

GLEESON CJ:   Thank you.  Yes, Mrs Shaw.

MRS SHAW:   Your Honours, as to the consistency of the judicial approach, I refer your Honours to two cases in my book:  B v The Queen where the High Court in the judgment of his Honour Justice Brennan as he then was regarded the summing up in that case as being unfair, and posed the question:

If the jury were going to acquit, they would have had to be impervious to the influence of the summing up.

GLEESON CJ:   What really can a trial judge do?  An expert witness comes and gives some evidence that is left, as it were, hanging in the air.  No argument is addressed to the jury by defence counsels seeking to relate that evidence on a rational basis to the facts of the case.  The trial judge can either ignore it or deal with it.

MRS SHAW:   Your Honour, his Honour had dealt with it.  He had dealt with it in the body of his summing up.

HAYNE J:   By telling the jury, “Here is the evidence and here is what was said.”

MRS SHAW:   Yes, and telling them how it bears upon the issue of voluntariness.  This is not explaining to the jury how the evidence bears upon intent.  This is an argument against relying on it, because what is fundamental to this question is the Falconer position.  In Falconer where evidence of dissociation was led, the accused had no memory of the events at all.  So, in terms of the theory of the doctor, to some extent it remained theory, and in this case it is one thing to put an argument against the accused on the psychiatric evidence; it is another thing to do it without notice, without any opportunity to the accused to rebut it and to refuse to do it on a redirection.  It is an argument that goes conclusively to guilt. 

Your Honours, that is an approach that the New Zealand Court of Appeal in Fotu has considered not consistent with the judicial approach, the semi-prosecutorial role taken on.  My learned friend’s suggestion that his Honour Justice Olsson relied on a minority decision in Pavlukoff is not accurate.  The decision was one joined in by the majority and it appears as a judgment relied on in current texts in Canada as to be the authoritative decision.  The only question that is in dispute is, is a judge entitled to specifically influence and attempt to influence a jury?  According to the current position of his Honour Justice Cox, because that is his practice, the judge is - we say that that is inconsistent with the right to a fair trial.

Your Honours, there is one High Court decision on a leave application where it was made plain that a judge was not entitled to influence the ultimate question and it is the case of Bourke v The Queen, the last case in my list where, on a special leave application, his Honour Chief Justice Mason then said that the:

direction was plainly objectionable, if and to the extent that it might be understood as inviting or encouraging the jury to act on or to give weight to any view they might attribute to his Honour on the ultimate question as to whether the accused’s guilt had been established.

So, in my submission, it is an important question in relation to the role of the trial judge whether he is entitled to attempt to influence the jury and we say that that does not show the respect for juries that they are required and certainly is not consistent with a fair trial.

In particular, we say that for my learned friend to argue that the accused’s evidence does not precisely fit with the theory is to ignore the evidence of the psychiatrist that it was consistent with dissociation occurring and to ignore that this Court has said time and time again the issue is whether or not it arises on all of the evidence, even if the accused himself denies specifically that he was provoked or the like.

So, your Honours, we say this is an important question because of the conflict which has been identified and, in truth, we say it is important to determine whether a trial judge is entitled to advocate the guilt.

GLEESON CJ:   Thank you.  The Court is of the view that there are insufficient prospects of success in an appeal to warrant the grant of special leave and the application is refused.

AT 3.20 PM THE MATTER WAS CONCLUDED