Stafford v The Queen

[1993] HCATrans 41

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B35 of 1992

B e t w e e n -

GRAHAM STUART STAFFORD

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 4 MARCH 1993, AT 10.33 AM

Copyright in the High Court of Australia

Stafford	1	4/3/93
MR S.E. HERBERT,	QC:	May it please the Court, I appear for

the applicant (instructed by Gilshenan and Luton).

MR B.J. BUTLER:  I appear for the respondent with

MR T.A. FULLER. (instructed by D. Field, Solicitor

to Director of Public Prosecutions (Queensland))

MR HERBERT:  Your Honours, the complaint in this case is

that the effect of the learned trial judge's

directions infringe what will be submitted to be a

rule in R v Robinson, (1991) 2 ALJR 644.

Your Honours, the direction may be conveniently

found at page 7 of the application book.

DEANE J:  Mr Herbert, you can take it that all members of

the Court have carefully read the judgment, and are

well aware of the basic factual matters.

MR HERBERT:  Thank you, Your Honours. Your Honours, that

being so, it is submitted that this direction had

the effect of permitting greater, or close,
scrutiny of the evidence of the applicant merely by

reason of the fact that he was the accused in the

case. By placing him in that position, it is

submitted, this direction then took from him, or

was capable of taking from him, creditability, only

by reason of that. If I may - - -

DEANE J:	Now, the Court of Appeal accepted, that on one reading of the critical passages, what was said
would be a misdirection.  But Their Honours
concluded that in all the circumstances of this particular case, the relevant passages did more good than harm, from the accused point of view.

Now, there are two aspects of that. One is,

if that is what the case turned on, there is a bit

of a problem about seeing that it is an appropriate

case for special leave.	The other is, were
Their Honours mistaken in any event in the
circumstance of this case.	I am not trying to

discourage you, but it does seem to me that they

may be the matters to which you might most usefully

direct some attention.

MR HERBERT:	I will deal with them immediately.
MR HERBERT:	I will deal with them immediately.  Firstly as

to the characterization of the directions by the

learned judges of appeal, it it principally what

was, with respect, thought to be perhaps the

motivation of the trial judge that Their Honours

dealt. They took the view, it would seem from the

record, that His Honour may have perceived - that

is the learned trial judge - some hostility or

difficulty on the part of the jury with the

evidence of the applicant. At page 11 of the

Stafford 2 4/3/93

application book, the joint judgment makes that

point, saying:

It is of course difficult, and sometimes

impossible, for an Appeal Court to tell when a

trial Judge is redressing what he perceives to

be an imbalance.

And then there is this, with respect, guess that:

If in the present case His Honour perceived

some hostility ..... then the further

comments ..... may readily be seen as an attempt

to encourage the jury to be fair to the

accused and to dissuade them from rejecting

his evidence out of hand -

Now, the Court then falls into error, in my

submission, in this statement, that:

The present case is an example of a

particularly strong Crown case followed by the

accused giving evidence in which he could not

account for -

various matters.	And at page 12 of the record,
line 7:

It is a good example of a case where there is a risk, whether the trial Judge broaches the subject of interest or not, of a jury

summarily rejecting the accused's evidence -

It is submitted that the test there sought to be

adopted is to measure against the strength of the

prosecution case the evidence of the applicant and

there is a conclusion that because the Crown case

was strong then, in effect, something less is

required of the trial judge in giving directions.

That is, that the trial judge complies with

Robinson, merely by warning the jury against a

complete rejection of the evidence of the

applicant. Now, that is insufficient, it is

submitted. So, to answer the points one, seriatim,

firstly, the court below was wrong in

characterizing this as being somehow balanced or

well motivated, because that is not the relevant

test, however interesting that speculation might

be.

Secondly, it is submitted that the learned judge's directions did not in any event amount to

what Their Honours considered them to amount to,

and finally allowed the jury to almost wholly

discount the evidence of the applicant, to almost

wholly discount it. Close examination of the

direction, which I will not go into at the moment,

Stafford 3 4/3/93

reveals that all His Honour warned against was a complete rejection or, as His Honour put it, for the jury to not say, "I am not going to take notice

of anything he says." Whilst it is correct for the learned judge perhaps to give such a direction, the rest of the directions permitted a discounting or

disbelief of the accused by reason only of his

interest almost up to the point of complete

rejection of his evidence.

If that is correct, then it is submitted that

what this honourable Court said in Robinson is

clearly infringed. Whilst in Robinson it is true

that the directions were worse and perhaps

specifically singled out the evidence of the

applicant for particular and close scrutiny, in

this case the interest of the applicant was

manifest. It is unnecessary, it is submitted, for

a trial judge to point out to a jury that the

interest of the accused in a murder trial is likely

to be by far the greatest interest of any person

giving evidence. That is obvious to the jury, it

is submitted, and bringing to their attention

further this matter of interest, and to merely warn

against a complete rejection, is to in effect

invite special scrutiny of the evidence of the

applicant.

The case may turn finally upon a short passage

in the judgment in Robinson at page 646D, in

particular the passage in column 1, in which the

Court noted that nothing in the rest of the

judgment was to be taken as depriving the jury of

the normal tests generally applicable to a witness.

The Court went on to say:

the jury is entitled to consider whether some particular interest or purpose of the witness

will be served -

It is submitted here that what occurred was in

conflict with this final passage:

But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to

strike at the notion of a fair trial for an

accused person. Except in the most

exceptional case, such a direction inevitably

disadvantages the evidence of the accused when

it is in conflict with the evidence for the

Crown.

It is submitted that this direction of this

judge below cannot be characterized in any other

way than a direction that the jury should evaluate

evidence on the basis of interest. Now, if that is

Stafford 4 4/3/93

so then there is a breach of what the Court said in

Robinson. The Court of Appeal, with respect, if

that proposition is correct, has failed to properly

understand the meaning of Robinson, and that is a

reason for a grant of special leave.	Those are my
submissions, Your Honours.

DEANE J: Thank you, Mr Herbert. Yes, Mr Butler?

MR BUTLER:  May it please, Your Honours, if I could first

correct an inaccuracy in the second sentence of the

second paragraph of my outline. This was not a

case - if I could put it this way, Your Honours.

There was a conflict between the applicant's

evidence and evidence of some of the Crown

witnesses. The Crown submission would be this,

though, that the Crown case did not primarily

depend on a - - -

DEANE J:  So we cross out the "not" in line 2?

MR BUTLER: Yes, Your Honour.

DEANE J:  Or you would prefer we crossed out the whole

sentence, I suppose?

MR BUTLER:	I would, Your Honour.
DEANE J:	We will just cross out the "not".

MR BUTLER:  My submission is this: The Crown case did not

primarily depend on a resolution of a direct

conflict between the accused and a Crown witness.

In many of the other cases, of course, that is the

situation with a conflict between the complainant

and an accused. In this case the conflicts that

did exist were part of a circumstantial case where
the most compelling evidence, in my submission,

consisted of forensic evidence, in particular blood

and a maggot in the boot of the appellant's car,

supported by concessions and contradictions in the

appellant's own evidence.

The directions by the learned trial judge must

be read in that context and, in my submission, when
read in full, would have been understood by the
jury as pointing out that they should not discount
the evidence of the applicant because he had an

interest in the matter.

Your Honours, there were features in this case

which gave rise to the danger that the jury might

have discounted the applicant's evidence, and those

features are referred to in the judgment of the

Court of Appeal and appear at page 8 of the record

book, starting at about line 50, where it was

pointed out that the evidence was that the deceased

Stafford 4/3/93

was a 12-year-old girl and that she had died in a

particularly violent way, and that there were

features of the evidence, which were outlined in

the first paragraph on page 9 which, as

Their Honours said:

were all consistent with the child having been

tortured immediately prior to her death.

It is in that context that the learned trial judge directed the jury, on a number of occasions

in the passages that are complained of, to not

discard the evidence of the applicant and in order

to do that, of course, there had to be some

concession in relation to the fact that he had an

interest in the matter. But taken as a whole, the

jury would have understood that His Honour was

pressing upon them, to a considerable degree, that
they must fairly consider and evaluate the evidence

of the applicant.

His Honour went so far in the passage, at

about line 15 on page 8 of the appeal book, to say

to them:

You must seriously take into account his

evidence and the prospect that what he says

might well be true, and only take into account

his interest in the matter to the extent that
it is fair to do so, while still allowing, out
of fairness to the man, the very important

feature: that he might well be telling the

truth and he might well be innocent.

It is our submission, Your Honours, that in

the context of this case the direction by the

learned trial judge was not such as to disadvantage

the accused, that it did not breach any of the

considerations which were seen to be impermissible

in the decision of this honourable Court in
Robinson v The Queen.	It did not in any way, in my

respectful submission, have the effect of

undermining the benefit of the presumption of

innocence.

DEANE J: Except, of course, as the Court of Appeal

acknowledged, on one reading of the critical

remarks, they did infringe the propositions laid

down in the judgment in Robinson.

MR BUTLER: Yes, Your Honour.

DEANE J:  And I do not think there is anything that could be

said to the contrary unless there is something you

would want to say about it.

Stafford 6 4/3/93

MR BUTLER:  No, I would readily concede that, and it was

recognized by the court.

DEANE J:  The real question is the effect of what was said

in the context of the summing up as a whole and in

the particular circumstances of the case.

MR BUTLER:  Yes, Your Honour. I would submit that that was

not a finely balanced question on the facts of this

case, though; that having regard both to the

evidence in the case and the summing up, that the

conclusion reached by the Court of Appeal in

respect to those alternatives was the only

reasonable conclusion that could have been reached

by the court. It is my submission that, on that

basis, it is not a case which should give rise to

special leave.

DEANE J:  Thank you, Mr Butler. Mr Herbert, is there

anything you want to put in reply?

MR HERBERT:  Only this proposition, Your Honours, that there

is nothing in the authorities to suggest that the

principles laid down in Robinson have no

application where the evidence of the accused is

meeting a circumstantial case, which is one of the

submissions made by my learned friend.

DEANE J:  Thank you, Mr Herbert. The Court will take a

short adjournment to consider what conclusion

should be reached in this case.

AT 10.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.57 AM: 

DEANE J: It follows from the decision of this Court in

Robinson v Reg (No. 2) (1991) 65 ALJR 644, that a

trial judge should not direct the jury that the

"interest" of an accused in the outcome of his or

her trial is a "factor" to be taken into account in

assessing his or her evidence. Nor should a trial

judge direct the jury to the effect that, in

assessing the evidence of all the witnesses, they

should take account of their relative interests in

the outcome. Any direction which directly or

indirectly requires or invites an assessment of the

reliability of the evidence of the accused or the

relative reliability of the evidence of the accused

Stafford 7 4/3/93

and other witnesses by reference to interest or lack of interest in the outcome of the trial is

likely to be understood by the jury as a direction

or invitation to discount the evidence of the

accused who will inevitably be seen as having a

greater interest in the outcome of the trial than

any other witness. That is what the decision in
Robinson was directed against.

Ordinarily, and notwithstanding what is said by the Court of Appeal of Queensland in this case

about "an admission of impotence", it is preferable

that a trial judge refrains from directing

and require some reference to the accused's interest in the outcome as a matter of

attention to the interest of the accused in the exceptional
outcome of the trial as a relevant factor in

assessing the reliability of his or her evidence.

fairness to the accused, it should suffice to

inform the jury that they must approach the case on
the basis that the accused is presumed innocent of

the acts which are the subject of the indictment

and that it would be wrong and unfair for the jury

to discount the evidence of the accused simply for

the reason that, as the accused, he or she has a

particular interest in the outcome of the trial.

Viewed in isolation, the remarks of the

learned trial judge about the "interest" of the

applicant and other witnesses in the present case

would seem to be in conflict with what we have said

above. However, the Court of Appeal concluded

that, in the special circumstances of the case, those remarks were favourable to the applicant. The members of the Court of Appeal saw the case as:

"an example of a particularly strong Crown

case followed by the accused giving evidence

in which he could not account for the

particular facts adduced against him, in which

he made a number of contradictory statements

and in which he simply denied having done what

was alleged. It is a good example of a case

where there is a risk, whether the trial Judge

broaches the subject of interest or not, of a
jury summarily rejecting the accused's

evidence on the basis of his interest."

In that context, their Honours concluded that the
trial judge's remarks were "the means by which
his Honour attempted to redress what he perceived

to be an imbalance, or to eliminate the risk of a

facile rejection of the accused's denial".

Their Honours added that, on analysis, the

applicant's evidence came down to "little more"

than a denial.

Stafford 8 4/3/93

Ultimately, the central question on any appeal in this case would be whether the Court of Appeal's assessment of the overall effect of the trial

judge's remarks was mistaken. If it was not and
those remarks were, in the particular
circumstances, favourable to the applicant, it is

apparent that there was no miscarriage of justice.

In circumstances where the trial took place almost

six months after this Court's judgment in Robinson

was delivered and where no objection was taken or

redirection requested by counsel in respect of the
relevant remarks, it is difficult to see how this
Court could be justified in granting special leave
to appeal so that it could re-examine the question
whether, understood in the particular circumstances
of the case, and in the context of the whole

summing up, the direction was, on balance,

favourable to the applicant. Be that as it may, it

does not appear to us that the Court of Appeal

erred in reaching the conclusion that it did.

In these circumstances, the application for

special leave to appeal is refused.

AT 11.03 THE MATTER WAS ADJOURNED SINE DIE

Stafford 9 4/3/93