Strbak v The Queen

[2019] HCATrans 242

[2019] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B55 of 2019

B e t w e e n -

HEIDI STRBAK

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 DECEMBER 2019, AT 9.45 AM

Copyright in the High Court of Australia

MR S.C. HOLT, QC:   May it please the Court, I appear with my learned friend, MR B.P. DIGHTON, for the appellant.  (instructed by Bamberry Lawyers)

MR M.R. BYRNE, QC:   If it please the Court, I appear with my learned friend, MR P.J. McCARTHY, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL CJ:   Yes, Mr Holt.

MR HOLT:   May it please the Court.  The exercise of finding of facts on sentencing in any case can involve a wide range of approaches.  The vast majority of facts which are determined on sentence are determined relatively informally or in different kinds of ways.  This case deals with a particular category of fact finding on sentencing.  That is where the prosecution, the Crown, alleges the existence of a factual circumstance which is adverse to the interests of a defendant, that is, which is likely to have an impact or will have an impact on the sentence, will determine the conduct that person was involved in and which is not otherwise admitted by the defendant on sentencing.

The significance of those kinds of facts is illustrated, probably in some ways as well as it can be, by the facts of this very matter.  We were dealing here with the offence of manslaughter, to which the appellant pleaded guilty, manslaughter well known of course for having within it one of the broadest ranges of criminal culpability of any offence, but the plea was entered on the basis that the appellant had committed manslaughter by criminal negligence by the failure to provide medical attention in circumstances where she was plainly obligated to do so to her young son.

The Crown sought to have her sentenced on the basis that she had either punched, kneed or kicked her child hard enough in the abdomen such as to transect his duodenum and to rupture his mesenteric artery.  That was a very significant, a very serious and a very profound allegation for the Crown to make against an individual and it was at the point of sentencing before his Honour Justice Applegarth unproved and not admitted by the plea that had been entered.

So, the question here that arises squarely, in our respectful submission, is whether the sentencing judge was entitled to use her silence at sentencing, that is, her decision to exercise her right to not give sworn evidence on the contested hearing to help the Crown to prove its case, to permit it to more readily draw inferences and to more readily accept the evidence that the prosecution itself sought to rely on to prove that matter.

The normal rule, of course, is that no adverse inference will be drawn from a defendant’s silence in criminal proceedings and those principles are now, following Azzopardi, well settled, in our respectful submission.  They follow as a function of the accusatorial nature of the criminal proceeding.  So, the underlying question here is whether the sentencing process – once the question of guilt has been determined of the underlying offence – has features such that that principle – the ordinary rule that no adverse inference can be drawn – ought apply to protect the defendant’s right to silence in a disputed fact hearing dealing with questions of significance.

KEANE J:   Is it right to say, it is about the right to silence because your client did not exercise her right to silence in the sense that she was not silent.  She gave a version and the version was in evidence.

MR HOLT:   Yes.  I was not precise enough.  Your Honour, with respect, is entirely correct.  She did, of course, exercise – she exercised her entitlement to speak to the police – the opposite of the right to silence.  But, at that point and in that hearing she held a distinct right, in our respectful submission, to silence and she chose to exercise it.  In effect, what she is criticised for is not “swearing‑up” – to use the vernacular – to an account which she had earlier chosen to give in her entitlement to give an account.

KEANE J:   Do you accept that it was open to the judge more readily to accept the evidence of Mr Scown where it conflicted with your client’s evidence because she did not swear up her statements?

MR HOLT:   No, your Honour, we do not accept that.

KEANE J:   You do not?

MR HOLT:   No, we do not.  I think in some ways that comes to the heart of the question here.

KEANE J:   When you say impermissibly drawing inferences from silence or drawing adverse inferences from silence, in terms of the sentencing judge’s findings of fact, what were the inferences that his Honour drew from her silence?

MR HOLT:   I think part of the difficulty is that – if I can say it in two ways ‑ ‑ ‑

KEANE J:   In terms of the list of contested facts.

MR HOLT:   Yes, there is the overall fundamental contested facts, if I can put it that way, which is the question of whether or not the Crown had proved that she was the person who had actually inflicted the blow to the abdomen of the young child and there were a whole lot, as the Court will appreciate, of other facts but which were in some ways intermediate facts assisting to reach that conclusion which were also disputed and in respect to – so, there are two answers to your Honour’s question, in respect of a number of those which I will take the Court to. 

His Honour expressly notes the absence of sworn evidence as a reason to accept a particular underlying fact in a particular way, then ultimately reasons, necessarily by the weight of those underlying facts, the vast majority of which relied on the acceptance of the evidence of Mr Scown to the ultimate conclusion which really mattered, which was whether she was to be sentenced on the basis that she had applied force to the abdomen of the child. 

Now, we accept that his Honour at no stage at the end says, I have all of these intermediate facts and I am now placing – more readily drawing the inference.  He does not expressly do that, but what he certainly does is say, Miller applies to me – that is, the principles in Miller apply on the sentencing, I am entitled to take that approach.  It was not a mandatory approach for him to take.  His Honour was not obliged to more readily draw inferences because the defendant had given evidence.

So he sets out that process, agrees that that is the way in which he is entitled to proceed and then there are a series of indications throughout the course of the judgment which indicate that he has done so in respect of intermediate facts, or other facts.  It forms, in our respectful submission – overwhelmingly, in our submission, the judgment makes clear that that principle in Miller that an adverse inference can more readily be drawn and that evidence can more readily be accepted is part of the architecture of the sentencing decision that his Honour makes because otherwise one would ask rhetorically, why would his Honour have set out those principles in the way that his Honour did, permitted himself to do that, and then specifically referred on multiple occasions to the fact that Ms Strbak had not in fact given sworn evidence in the course of the hearing.

BELL J:   Mr Holt, on one view there might be a distinction between the sentencing judge saying, I have on the one hand Mr Scown’s sworn evidence, that is contradicted by the out‑of‑court statements made by the offender and I give less weight to those out‑of‑court statements, having regard to the circumstance that they were not given on oath.  That might be distinguished from a process of reasoning that says, I have Mr Scown’s evidence and I more readily accept that evidence because the offender did not give sworn evidence before me.  Do you accept there is a distinction between the two?

MR HOLT:   Absolutely we accept that there is a ‑ ‑ ‑

BELL J:   So in answer to something that you were asked by Justice Keane a little while ago, it seemed to me you might have been saying that it was not open to reason that less weight would be given to the out‑of‑court statements that the appellant here made.

MR HOLT:   I suspect that my answer was just clumsy.  The position, in our respectful submission, is this.  It is clear and, indeed, it is the position that the Court of Appeal took in this case in saying that his Honour Justice Applegarth did not engage in Miller‑type reasoning.  It is noted that it is permissible and, indeed, we accept entirely that it is permissible for the weight to be given to Ms Strbak’s out‑of‑court statements to be less by virtue of the fact that it was not sworn.  There is a significant difference between that and reasoning and giving weight to the fact that she chose not to give evidence on oath and that is the distinction that – I did not make it clear – that is precisely the distinction that we make.

With respect, that is the distinction which goes to the heart of the error that we say that the Court of Appeal made in not engaging with the ground of appeal that we sought to run below, and also the underlying question of whether the right to silence has the effect that we say that it does, the same effect that it ought have – that it has on a contested criminal trial on sentences it does in those circumstances.  So it is precisely because of that distinction, in our respectful submission.

Had the sentencing judge done – perhaps slightly ironically, had the sentencing judge done precisely as the Court of Appeal suggested that his Honour did do, we would not be here.  There would be no basis for an appeal.

EDELMAN J:   Really, I mean, the heart of your submission is [36] and [37] – paragraphs [36] and [37].

MR HOLT:   It is.

EDELMAN J:   Without those paragraphs it might be difficult to read the particular later paragraphs of the sentencing judge’s reasons as falling within the second category that Justice Bell referred to rather than the first.

MR HOLT:   I think at the very least I would concede that it would be dramatically more difficult for us were those paragraphs not present.  What they indicate is a positive desire – a positive intention, I ought say, in a thorough and, with respect, impressively reasoned and transparent judgment of a principle which his Honour, one would readily assume, was applying. 

Then, what one sees as examples through those paragraphs we have taken the Court to in our written outline, I accept that we might have a harder job were we reasoning only from those propositions, I accept that, but the architecture that his Honour sets up for the making of the decision in [36], which is on page 18 of the core appeal book, with the greatest of respect could not be clearer. 

His Honour sets out an entirely accurate summation of the judgment of her Honour Justice Holmes, as her Honour then was in Miller, notes the additional comments of his Honour Justice of Appeal Williams, and then says:

In the absence of sworn evidence by the defendant about matters about which she could give evidence and be cross‑examined, I can more readily accept prosecution evidence and draw inferences invited by the prosecution.

The question then becomes, did his Honour do that.  We see, with respect, and the Court can read these so I will not take the Court to all of them but we can see some very clear examples, but probably the very basic trite point to make is if his Honour was not then engaging in that exercise, what was the point of referring to the absence of sworn evidence or the absence of evidence having been given to use the various phraseology that his Honour uses, unless it was latching back on to the Miller principle which his Honour had set out in unequivocal terms and by reference to the very activity which, if this were a criminal trial, would be prohibited absent exceptional circumstances, that is, the drawing of inferences more readily or the acceptance of evidence more readily by virtue of the absence of effectively a decision not to give sworn evidence. 

Probably the clearest example is paragraph – we do not resile from any of the others but obviously the clearest example is paragraph [207] on page 46 of the core appeal book, so this is paragraph [207] of his Honour Justice Applegarth’s reasons below.  This is under what I describe, possibly a little inaccurately as an intermediate fact.  It was a contested fact but also no doubt a contingent part of the inferential reasoning process:

Strbak did not give sworn, oral evidence denying that such a slapping incident occurred that weekend.

Now, what his Honour does not do is say therefore I give it less – therefore, I more readily accept Scown’s evidence, but that is the necessary implication.

BELL J:   When one goes to the next contested fact in paragraph [208] his Honour says:

This fact is proven by Scown’s evidence and is uncontradicted by evidence given by Strbak. 

Do we understand that is to be – that is a reference to uncontradicted by sworn evidence?

MR HOLT:   I think we have to, with respect.  I have circled that word also.  There are some other points where there is just a reference to evidence or the giving – to evidence and in fairness one might read those as being a reference to the unsworn interviews that were before the Court that could be done.  But, in context, the giving of evidence, particularly following immediately from paragraph [207] and as we say simply because his Honour had said it, the earlier generalised paragraphs that this was part of the architecture of his decision‑making and he did not need to do that, it was not mandatory to engage in this reasoning process.

BELL J:   We do not have before us the accounts given in the interviews with the police or the statement.

MR HOLT:   No, you do not.

BELL J:   Do we know whether the frogmarching incident was, in fact, denied in those out‑of‑court statements? 

MR HOLT:   I apologise – I am not in a position to assist the Court immediately on that.  We will if we need to.  I have a recollection of it but I would be guessing and I do not want to do that. 

EDELMAN J:   There is a reference.  The final sentence in [208] refers to:

Scown’s evidence was that she was frogmarching him and as she walked him into his room she slapped him in the area of his ribs.

MR HOLT:   Yes.

EDELMAN J:   But you say that the reference to evidence is only – to her evidence is only to sworn evidence so she may or may not have said something about that.

MR HOLT:   Precisely so.  In the structure of the argument that we make, it would not matter whether she had or not.  The functional reality is that his Honour is giving weight, as he indicated that he would, to the fact that she had not given sworn evidence as something having an evidential value in the course of the process.

BELL J:   I understand that submission, but to the extent that in some passages it may be unclear whether his Honour is simply drawing an inference more comfortably because the contradictory account given by the appellant was not sworn it might be useful to know whether there was a contradictory account.

MR HOLT:   Yes.  I am sure that we could assist the Court collectively on that if it was felt appropriate.  I am not in a position to do so now and I apologise. 

EDELMAN J:   I realise you do not intend to take us to all of them but would you, at some stage, just give us a list of every paragraph that you rely upon where you say that the inference was drawn?

MR HOLT:   If your Honour has the outline of oral submissions that was provided this morning – I know your Honour will not have had a chance to read it – but, in fact, we have set that out in there.  That may be of assistance where we have said at 4b “Applied” – I have had a bet each way and put “(at least)” in parenthesis – but [121], [197], [207] and [208] are the ‑ ‑ ‑

BELL J:   Your list is notably shorter than the respondent’s list.

MR HOLT:   Yes.  Maybe I have been less generous to myself in the course of the list.  It is a question of where one draws the line and this is part of the difficulty with trying to unscramble the egg in this case because there were a very large number of facts which were contested and, as I have said – without the wish to repeat myself – many, if not all, of those came from Scown – some from others – but mainly from Scown and must, necessarily, form part the – they must each have formed the strands in a rope to come to the conclusion that was able to be drawn.

It is difficult – and she did not give sworn evidence about any of them, of course, so it is difficult to know at any level of precision how much the process was if the process that his Honour engaged in was wrong and affected by and otherwise legitimately influenced by the absence of sworn evidence.  But what those paragraphs do, in our submission, is make absolutely clear – particularly those two in [207] and [208] – that this was a process of reasoning that his Honour was (a) comfortable engaging in and rightly so because Miller bound him and so he was plainly entitled to do that and that his Honour, in fact, engaged in that exercise and I suppose there is no reason to think that it did not continue to influence the sentencing.

It must at least have done it to that extent.  It probably did it to a much greater extent because it clearly forms, as I say, part of the architecture of the process his Honour engages in.  But unscrambling that egg with precision is not possible and I think I would be misleading the Court if I attempted to do it with any greater level of precision.

Dealing with those issues, though, and the point that your Honour Justice Keane raised with me at the very outset – that is, the question of whether in fact what his Honour was doing was something which was permissible ‑ that is something which was simply placing weight on the fact that an out‑of‑court statement is unsworn and therefore of a lesser evidential value, although not necessarily so, the only paragraph that the Court of Appeal referred to in that regard of his Honour’s reasoning – the Court of Appeal do not refer to paragraphs [35] and [36] and the court did not refer to any of those other paragraphs we have taken the Court to in our submissions here today.

What the Court of Appeal did – in fact, I am sorry; I should take the Court to what the Court of Appeal did before going there.  That is at core appeal book page 113, paragraph [61] of the Court of Appeal judgment.  This is where the Court of Appeal dismisses any need effectively to engage with the ground of appeal by noting in the second half of paragraph [61]:

This was not a case where the judge was asked to draw an inference more readily which was adverse to the applicant from the fact that there was no evidence from her.  

We simply say that is plainly a wrong statement of what occurred:

Rather, the judge’s reasoning was that her evidence should be given less weight than it would be given if tested by cross-examination –

which is the point that your Honour Justice Keane raises with me.  The footnote, paragraph 73, refers only to “Reasons [141]”.  I will note that for a moment; I will come back to it.  Then the paragraph goes on:

Even on a trial, it is not improper for a jury to be instructed that the accused’s exculpatory statements made out of court, if tendered . . . might be given less weight -

Exactly the point we have been discussing uncontroversially.  That is what the court said his Honour did and the very basic point we make is that it is not what he did; he did something wholly different from that.

KIEFEL CJ:   Why do you raise the jurisdictional error, though?  Why do you not just say it was wrong?  You are making it hard for yourself, are you not?

MR HOLT:   I have had drafter’s remorse on a number of occasions in the last few weeks, your Honour.  I think out of an abundance of a desire to be precise, we probably made things harder for ourselves than we necessarily needed to.

KIEFEL CJ:   It is an appeal ‑ ‑ ‑

MR HOLT:   I accept what your Honour says and I have struggled to know how to answer that question when it was inevitably asked.  It can be put in jurisdictional terms if it needs to be, but the basic point is a court faced with a properly made ground of appeal which determines not to engage with it on a mistaken factual basis is declining to exercise its jurisdiction.

KIEFEL CJ:   But you just explained the reason that they get into errors on your argument is because they proceed upon a wrong factual basis.

MR HOLT:   They proceeded on a wrong factual basis.

KIEFEL CJ:   That is where the errors start.

MR HOLT:   That is where the errors start.  We would say it is ‑ ‑ ‑

EDELMAN J:   Courts have authority to proceed on the wrong factual basis.  It might be an error of law but it is not a jurisdictional error.

MR HOLT:   It is a jurisdictional error if the fact is essential to the exercise of the jurisdiction because here the Court effectively declined to consider the ground of appeal.

EDELMAN J:   No, it considered it and dismissed it.

MR HOLT:   Yes, on the ‑ ‑ ‑

KEANE J:   It might be that it got it wrong in doing that but your argument, this argument about jurisdiction, taken to its logical conclusion, means that you could go to a judge in chambers in the civil list and get a writ of certiorari quashing the decision of the Court of Appeal.  This is most unlikely.

MR HOLT:   Yes.  I understand the point your Honour makes.  I wonder whether I ought simply seek leave to amend the ground of special leave such as to allege only error.  I am almost reluctant to do that but it is the essence of it and it is not a matter we have not considered in the last little while.  I apologise I have put the Court in that position.

KIEFEL CJ:   I do not think you would have any objection to an amendment of nature, Mr Byrne?

MR BYRNE:   It is very late in the day but we cannot say we are taken by surprise at all.

KIEFEL CJ:   Yes, probably frowned a bit at it anyway, did you not?

MR HOLT:   Yes, and not unreasonably, with respect to our learned friend.

KIEFEL CJ:   You have leave.

MR HOLT:   Thank you.

BELL J:   Just while we are on this aspect of the appeal, can I just raise this consideration?  Your third ground in the Court of Appeal asserted that the sentencing judge erred in having regard to the fact that the appellant did not give evidence that squarely raised the Miller issue.

MR HOLT:   Yes.

BELL J:   When one turns to the analysis at appeal book 105, paragraph [19], the court says that:

the presently relevant ground of appeal is –

your second ground; that is, that there was an error in the factual conclusion.

MR HOLT:   Yes.

BELL J:   Then when one goes to paragraph [29], one finds after Justice McMurdo has analysed the differing views about the nature of appellate review on a sentence appeal, taking the more generous view his Honour says that there has been a failure:

to demonstrate an error by the judge in making the critical finding, and consequently –

that the appellant failed to establish what his Honour again refers to as:

the only relevant ground of appeal.

That seems to be linked to an earlier discussion in which there is reference to House v The King error and mistaking the facts, and to the suggestion that an error in the approach to fact finding might not be relevant to the determination of an appeal.  I am just seeking to understand what the Court of Appeal was saying and why it was suggested that your only relevant ground of appeal was the ground which challenged the ultimate factual conclusion.

MR HOLT:   I am bound to say I had not drawn the connection between those two parts of the appeal judgment until your Honour has just raised it in those terms.  The first reference we simply took as being a reference to the fact that at that point in the judgment those were the principles that were relevant to that ‑ that they were the principles that were relevant to that particular ground of appeal, therefore that ground of appeal was described as relevant ‑ as being the only relevant ground of appeal for those purposes.  There is an incongruity on the face of it in paragraph [29]:

consequently has failed to establish the only relevant ground of appeal.

I submit now perhaps that probably simply looks like unfortunate drafting rather than any statement of principle.

BELL J:   Yes.

MR HOLT:   I think as much as it is tempting to grasp an invitation, or potential invitation, I do not think I can do it in that context.  I do not think – I do not suspect that it ‑ ‑ ‑

BELL J:   There was nothing about the way the matter was argued that would explain ‑ ‑ ‑

MR HOLT:   No, and I appeared in the Court of Appeal ‑ ‑ ‑

BELL J:   Yes, all right.

MR HOLT:   ‑ ‑ ‑ and certainly there is nothing of any significance in that – from our ‑ ‑ ‑

BELL J:   Yes, I understand.

NETTLE J:   Mr Holt, might it be that his Honour at this earlier stage is proceeding on the assumption that Miller is correct and he does not turn to Miller until later on?

MR HOLT:   That could well be, your Honour.  That could well be a reasonable explanation for those purposes.  Obviously his Honour knows when – his Honour Justice McMurdo knows when his Honour is engaging in this – what he ultimately concludes about Miller, that is, that his Honour did not engage in a Miller‑type process so it would be a perfectly permissible way of proceeding.

NETTLE J:   In his own mind it is the only issue because he has already in advance, as it were, determined what he will say about Miller.

MR HOLT:   Yes, I certainly say nothing pejorative about the reasoning ‑ ‑ ‑

NETTLE J:   No, I do not mean to be pejorative, just ‑ ‑ ‑

MR HOLT:   No, we do not say – we do not seek to make any weight of that, I think your Honour’s analysis is likely correct and I only say “likely” because I have not had a chance to think about it as deeply as I would have liked to because I had not thought of it, I apologise.

I was taking the Court to paragraph [61] in the Court of Appeal judgment.  I have already taken the Court to paragraph [61] which, we say, as I have noted was plainly wrong and I have noted that it was only the reasons at [141] which the court referred to and if we can go – can I ask the Court to go to paragraph [141] at page 36 of the court book. 

The Crown – the respondent does very much what the Court of Appeal did but in a slightly more extended way here saying, in effect, that the Court of Appeal was right to conclude that the judge did not reason in a Miller way because the way in which he reasoned is encapsulated in [140] and [141]. Of course, the obvious with respect to logic of that and the problem with the Court of Appeal’s approach to it is that whatever you say about [140] and [141] it ignores those other paragraphs, it ignores the analysis, ignores [35], [36], [207] and [208]. So, this reasoning might also have been engaged and it is not to the point but, in any event, it is worth, we think, just drilling for a moment into those two paragraphs. So, at [140] his Honour notes:

Despite the reservations which I have about Strbak’s credibility and the reliability of many of the things which she told police –

So this is not here an analysis of her failure to give sworn evidence, this is an analysis of concerns that his Honour had about the reliability and credibility of the interview with the police per se.  He says:

I remind myself that my rejection of parts of her evidence or disinclination to accept it when it conflicts with other, more reliable evidence, does not necessarily lead to the conclusion that the contested facts are thereby proven.  The onus remains upon the prosecution to prove the contested facts, if it can . . . my reservations about the credibility and reliability of parts of her account of events does not automatically bolster the credibility and reliability of certain prosecution witnesses, such as Scown.  The evidence relied upon by the prosecution must warrant acceptance in its own right.

Our respectful submission about that is that his Honour is engaged there in an entirely different exercise.  It is not the exercise we are critiquing or that we are critical of.  His Honour is engaged in an exercise of saying what do I do when on the unsworn account I find there are issues with it, how do I use that in my reasoning process.  It was, with respect, an entirely different intellectual exercise.  Then [141], which is the one that the Court of Appeal relies on, a very short paragraph:

the decision of Strbak not to give sworn evidence and to verify contentious parts of her statements to police means that I accord that evidence less weight than I would accord it if given on oath, and tested by cross‑examination.

Now, that is one of two things - it is an interesting paragraph.  It is actually one of two intellectual processes.  It is either intended to be an orthodox comment of the kind we have been discussing this morning, that an interview, an out‑of‑court unsworn statement, carries less weight because it is not tested by cross‑examination and not on oath in which case it is entirely unexceptional, but says nothing about what his Honour otherwise did, or at one level it is a pretty clear indication that his Honour, in fact, put weight even in that process on the decision not to give evidence rather than the status, the unsworn status of the interview itself because his Honour counters it in terms of the decision of Strbak not to give sworn evidence and verify contentious parts of her statement, that being the act or omission rather which itself carries evidential weight.

Either way, in any event, it has no relevance to the – if that was the only reasoning his Honour had engaged in, we would not be here.  But, it cannot undo what is done by paragraphs [35], [36] and the other paragraphs which we have identified, in our respectful submission.

KEANE J:   What about [142]:

To the extent that there is a conflict between the sworn evidence of Scown and the unsworn evidence . . . I prefer the evidence of Scown.  This is not only because it was tested . . . because it accords with the medical evidence . . . I also have reservations about the credibility and reliability of Strbak’s account of events to police –

and so forth.  That paragraph does not look like drawing an inference against her, it just looks like preferring the account of others because her account – the account she tenders or that she relies on – does not tender – she relies on – is regarded as deserving of less weight.

MR HOLT:   There are two submissions we make in response to that.  Firstly, the reason that his Honour describes in [142] is unexceptional – we have no criticism of it – but, again – at the risk of sounding repetitive – it does not undo what is done in [35], [36] and in the other parts of the judgment.

KEANE J:   Just so we are clear, you do not have a criticism of what is said in [140] to [142].

MR HOLT:   No criticism of what is in [140] – none in [142].  Paragraph [141], we simply say it is either an orthodox statement of principle but the reference there to Strbak not giving sworn evidence and verifying contentious parts of her statement may be thought to be inconsistent, in fact, with the principle in Mule and other cases. 

But, in any event, the reasoning which his Honour is describing there – importantly, if we go back over the page – is in his Honour’s assessment of Strbak’s unsworn evidence.  It is not in his Honour’s assessment of each of the individual component parts nor the assessment of Scown’s evidence – nor in the overall assessment of the inference to be drawn.

So, what his Honour is doing – again, with respect, perfectly properly here – subject to that one potential reservation about [141] – is analysing her unsworn account in a perfectly orthodox way.  What his Honour otherwise does, as he says he is going to do and then does, is apply Miller and say, but beyond that, the fact that she has chosen not to give sworn evidence is a fact in and of itself - an omission in and of itself which can allow evidence to be more readily and inferences to be more readily drawn.

So, we do not criticise that.  What we say in response to our friends’ submissions and to the Court of Appeal’s reasoning is that that is not reflective of the error which is manifested in the Court of Appeal judgment.  I am sorry – I withdraw that.  That is not reflective of the error that we say that was made by virtue of reliance on Miller nor the way in which Miller was, in fact, relied upon below as his Honour said that he would do and then did.

Our learned friends submit that in the – sorry, I apologise – if I might just have a moment.  I think I would be repeating that if I keep going on that point in the absence of having answered the questions that the Bench has asked of me.  Our respectful submission – if I can summarise it on that basis – is that the Court of Appeal in paragraph [61], effectively, simply misunderstands what his Honour said that he would do – which was to apply a judgment which bound him in the sense that it made - it permitted him to do the exercise that his Honour did and is then clear enough, in our respectful submission, through the course of the judgment, that that is precisely what his Honour did.  It was the fact that the Court of Appeal relied, in effect, only on [141] which led it into error and caused it to wrongly dismiss that ground of appeal.

Now, our learned friends say that if we are right about that the conclusion ought be that this Court would just remit the matter back to the Court of Appeal to allow the Court of Appeal to consider that ground of appeal and for itself to determine whether or not Miller remains good law in Queensland in accordance with orthodox principles.

Our respectful submission is that it is not one of those cases where this Court is otherwise in any way disadvantaged by not having that judgment from below in light of the fact that the Court has Miller and Miller is a properly reasoned, thoroughly reasoned judgment of the Queensland Court of Appeal to this effect.

So on that basis, for effectively practical reasons, our submission would be that in order to exercise the very broad jurisdiction that this Court has under section 37 of the Judiciary Act, which permits it to give any such judgment as ought to have been given in the first instance, this Court would properly consider the underlying substantive question which is whether or not the accusatorial nature of adverse fact finding on sentencing carries with it the same protections in terms of inference drawing that this Court has held in a line of cases, culminating in Azzopardi, ought apply other than in rare and exceptional circumstances.

EDELMAN J:   You accept that if Miller is correct, the appeal is dismissed.

MR HOLT:   Absolutely.

EDELMAN J:   And if Miller is not held to be correctly decided, then the matter ultimately needs to be remitted back to the sentencing judge.

MR HOLT:   Yes.  We have said in the – drafter’s remorse again.  We have sought the remedy of going back to the Court of Appeal.  If that were the ultimate outcome, though, then it ought properly simply be remitted back to the Supreme Court for a reconsideration of the sentencing, which would almost certainly, with respect, in our submission need to be conducted before a different judge.

NETTLE J:   Do you want it to go back to the Court of Appeal either way, do you?

MR HOLT:  No, your Honour.

NETTLE J:   You want it to go straight back to a trial judge?

MR HOLT:   We think it should.  We think sensibly it should.  If this Court were to say we want the Court of Appeal to answer the question of whether Miller remains good law, then that is what should happen.  If this Court determined that Miller was not good law, then ‑ ‑ ‑

BELL J:   It should go back to the sentencing judge.

MR HOLT:   It should go back to the sentencing judge.  If this Court determines that Miller is good law, nothing happens at all, the appeal is dismissed.  I will move then to the substantive question, if I may.  That is ultimately our submission that the right to silence – it has been put in terms of Miller for obvious reasons because that was our decision below but ultimately obviously this Court’s role is simply to determine here whether the right to silence and more particularly the restrictions on the use of the failure to give evidence on a contested fact sentencing hearing where the facts are adverse applies on sentencing in the same way that it does at a criminal trial.

We say that it should for four reasons.  I will summarise them now and then take the Court through them, if I may.  The first is that the restriction on drawing adverse inferences from the exercise of the right to silence in a criminal trial – so putting to one side for the moment the sentencing context – stems from the accusatorial nature of the criminal proceedings.  That much is clear in our submission from Azzopardi and the line of cases that it culminates from.

The protections that the contemporary common law of Australia gives to the bundle of entitlements that flow from the accusatorial nature of a criminal trial are firm.  They have probably become increasingly firm, as this Court has described, over the course of recent years and ought, in our submission, yield only to a very clear statutory diminution of that bundle of entitlements and protections.

Then the core submission for the purposes of this appeal is this - that adverse fact finding on sentencing, to use a shorthand expression for what is otherwise a very long sentence, is also an accusatorial process.  It carries liberty consequences to which the right to silence applies and, as a consequence of that identification of those features, it ought properly, as a matter of legal policy, be given the same protections, in terms of the question of inference drawing, from silence as apply in a criminal trial.

KEANE J:   Is there any Australian case that says that the sentencing process is just as accusatorial or the full accusatorial or perhaps a little different?  I mean, I ask because in Olbrich the Court seems to be equivocal about the – well, the Court does not equate the process at sentencing with the process at trial in terms of its accusatorial character.

MR HOLT:   Well, that is certainly true.  The closest expression of it ‑ and it was in dissent by his Honour Justice Kirby – was in that judgment where his Honour very clearly argues for the proposition that the sentencing process right up until the conclusion at the point at which a sentence is handed down, in our respectful submission, convincingly, is part of the criminal trial process and has about it that accusatorial nature.

KEANE J:   The majority seemed to be more equivocal.

MR HOLT:   More equivocal but the ways – obviously, it was a different question that was being considered; it was the question of the standard of proof to be applied on a contested facts sentencing.  But our respectful submission is the principles that come out of the majority in Olbrich, together with the principles that come out of Azzopardi in particular, mean that the question will be answered on the basis that whilst those two processes are not identical and they carry with them some different features, they are in effect similar enough and in important ways that are properly analogous that the protection ought apply. 

But no is the short answer to your Honour’s question.  I cannot point to an authority that says that to that extent.  I will take the Court through why we say it is an accusatorial process and why it ought, just as a matter of actual substantive analysis, bear that description.

EDELMAN J:   The strongest analogical point would seem to be where there has been a verdict of guilty upon a plea of not guilty and the sentencing judge has to find the facts consistent with the evidence that was given during the accusatorial trial before the jury.

MR HOLT:   Yes, and, of course, to extend what I understand to be your Honour’s point, the accusatorial process before the jury would have been subject to the restrictions in Azzopardi as to the use to which that inference could be made and so the argument would go that the sentencing judge would be constrained on the same basis, in large measure for practical reasons supportive of the right to silence which would be that if it were otherwise than that then a person might “improperly” be pressured into giving evidence at a trial so as to protect her position on sentencing.

I suppose in fairness, and considered this issue, and had not raised it particularly in the written submissions that have been filed, is it may well be said in response, well, it would be open to a defendant in those circumstances to then simply choose to give evidence in the contested fact aspect of the hearing.  Although then, of course, what does the sentencing judge do with inconsistent – effectively inconsistent – potentially inconsistent accounts and findings on critical matters?

EDELMAN J:   There are also some circumstances such as considered by this Court in Chiro where the Court is required to ask special questions of the jury.

MR HOLT:   Yes, and, indeed, if this had been a jury trial that might have been done.  You could have sought a special verdict under – I do not have the section number of the Code immediately in my head – I apologise – but a special verdict could have been sought.  If this were a contested manslaughter, a special verdict could have been sought which would have determined the factual basis.

BELL J:   That was the view that Justice Stephen espoused in Veen [No 1] but I think the balance of authority has tended against the wisdom of seeking a special verdict, including in murder where manslaughter is left as an alternative.

MR HOLT:   Yes, and I only raise it because at least under the Criminal Code (Qld) – and I apologise, I do not have the provision immediately to hand – that could be an option, in effect.

BELL J:   Yes.

MR HOLT:   Now, it was never sought, it is more about attempting to identify what might have occurred had this been a trial and what impact effectively the position the Crown takes, the position as espoused in Miller might have on the right to silence at trial itself, which is it might affect the decision‑making of a person in the trial context.

BELL J:   In some respects manslaughter and the differing consequences on sentence that will often flow, depending upon whether it is voluntary or involuntary, raise rather distinct issues.  When one looks at Olbrich the point that was being made by the majority there was that the sentencing judge was right to say I am going to sentence you for what it is you did in importing a commercial quantity of drugs.  The sentencing judge rejected the idea that it was necessary for the prosecution to negative beyond reasonable doubt that Mr Olbrich was merely a courier.  The emphasis in the majority’s analysis in Olbrich is the Court sentences for an offence sometimes in circumstances where it has limited knowledge. 

The point that you are raising in terms of your emphasis on the continuing accusatorial nature of the system is that here the sentencing judge recognised that a more severe penalty would be appropriate were it voluntary manslaughter and it is not a question – it is not akin to the Olbrich situation where you say, well, I sentence for what she did because that is the very question what did she do.

MR HOLT:   It is not a question of degree – yes, exactly, so it is not a question of – and the complexity with the courier principle distinction in Olbrich which was borne out in the judgments in that case is that in some ways it is a continuum, it is not necessarily a question of has fact X been proved, it is does label Y apply, which is a slightly different question because here we are talking – and this is why we try and find analogies all the time because we are lawyers but this case is in some ways the best analogy because this was an actual act that the Crown was saying had been committed by my client - the act of punching, kneeing or kicking her toddler in the stomach with those extraordinary consequences and with that level of force.

When one just even says that in those terms it becomes clear that the act of proving that, of the State seeking to prove that which it must even under 132C albeit to a lower standard is an act which feels very akin to the attempt to prove the elements of a criminal offence and with very significant liberty consequences for obvious reasons in terms of length of sentence and just the marking of the finding by a court of the fact of committing that extraordinarily heinous act by an individual. 

So, I do not want to narrow the focus down so much that it becomes not a question of principle but a question of this case though, of course, it can be because the other analogy that I think I might tentatively posit would be in the old language the principal party analogy. 

So, where a person pleads guilty, for example, to an armed robbery and pleads guilty on the basis that she was the lookout or that she was a person involved in a general incitement to do something two days earlier but the Crown says that she was the person with the firearm who pointed it at the bank teller, you are again, like this case, you are truly fact finding.  You are not establishing something on a continuum or identifying a label that might be of assistance, you are truly fact finding. 

What was the person who pointed what was said to be a gun in the face of a bank teller - holding a gun or an umbrella, those sort of facts that to a greater or lesser degree – that would be to a lesser degree obviously if the person thought it was a gun but to a greater or lesser degree matter, so that was why I started the submissions this morning by accepting that not all fact finding on sentencing is created equal.  The vast majority of it does not attract these principles at all.  It is done formerly and straightforwardly. 

But this exercise, adverse fact finding that matters, if I can put it bluntly, feels very much like and for good juridical reasons feels very much like the activity that the crowd is engaged in when it seeks to prove criminal conduct against a citizen at trial.

It is not entirely analogous because guilt has been established and that is a significant point, a significant step.  But what it has is, plainly, in our submission, those accusatorial features which must stem – if one breaks them down – must stem from (a) the burden of proof – and that is not in dispute that the burden of proof is on the prosecution to make good an adverse fact of this kind, (b) from the potential consequences that flow from it, and (c), as a matter of principle, from the reality that that fact‑finding process is a decision by the Court that here my client did that very act. 

So, it is the finding by a court at the invitation of the Crown on a matter that it must prove that very serious criminal conduct has been committed that, yes, falls within the general span of the offence that the person has pleaded guilty to or been found guilty of in the context of a contested jury trial but which has yet to be proved.

Here is a classic example where, in many ways, the question of fact finding on sentencing was in a real sense more important and significant in terms of the exercise the Crown was engaged in, the Court was engaged in and the defence was engaged in than the question of trial or the entry of the plea. 

I think your Honour Justice Bell is, with respect, is correct.  Manslaughter, probably the reason why it comes up so acutely here is because manslaughter has those features to it.  But I think there is something more to it than that which is this idea that this is true fact finding – this is about determining what act a person engaged in, not trying to characterise conduct which is otherwise acknowledged or accepted by the plea which was more like Olbrich.    

BELL J:   When you say that the plea was entered on the basis that her culpability was for manslaughter by criminal negligence, how was that conveyed to the Court?

MR HOLT:   My recollection – but I think I can confidently put it on this basis – I was not there but, on the record – was that the plea to manslaughter was entered.  It had already been well known between the parties that that was the basis upon which it was entered – that that was indicated to the court.  Then the matter was set down, in effect, for a contested fact sentencing. 

I think it is far too simplistic for us to have put it in the way that we did – to say it was entered on the basis of – because, of course, what it was was simply a plea of guilty to the elements of the offence which, for manslaughter in Queensland encompasses an extraordinarily broad range, does not delineate between unlawful and dangerous act manslaughter as it might be called elsewhere or manslaughter by gross negligence.

Then, there was a separate and distinct process which was – and beyond the elements of that offence what do I admit?  The benefit here was that the prosecution had, I think from memory, put the case on two alternative bases.  I am assisted – yes, page 13 of the core appeal book, paragraphs [3] and [4] of his Honour Justice Applegarth’s judgment:

proceeded to a contested sentence.

BELL J:   I see, yes.  

MR HOLT:

The prosecution particularises the charge . . . on two alternative bases.

So, in many ways – and the prosecution did not have to do this but it simplified the process.  It said there are one of two ways here.  We allege one – you accept the plea and admit the other.

BELL J:   So on its primary basis, applying Olbrich, the prosecution assumed the onus of establishing that primary case?   

MR HOLT:   Exactly.  Of course, had this been a trial it would have done so on “beyond reasonable doubt”.  That very fact – it would have been required to prove beyond reasonable doubt.  Indeed – and this is the complexity that the Court will be well familiar with – the breadth of types of categories of manslaughter or the way in which manslaughter can be committed – which is that if you acknowledge guilt of manslaughter you can be acknowledging something that sits a very long way toward the lower end of criminal culpability and the way in which it is alleged against you. 

This process means that that question – which in many other contexts one could well imagine being dealt with by the existence of separate kinds of criminal charges – given the significant interests at stake – but it is here dealt with through the contested fact process which is why the contested fact process in these circumstances, at least, ought be described as having an accusatorial complexion to it.  

Now, that is putting it too lightly.  It is an accusatorial process, in our respectful submission, because, as we say, the burden of proof is on the Crown.  We are dealing with an allegation of fact here at least, a claim that we actually did something and something very serious, something that will have profound consequences.

So when one now unpacks the reasons as to why the criminal trial contains the bundle of protections…..the right to silence protections that flow from that bundle of rights and entitlements, there is, in our respectful submission, and ultimately this is a question of judgment, no good reason why the contested fact sentencing process, at least when put in the context such as appears in this case, ought not have the same kinds of protections to it.

Indeed, if I can flip the coin, there appears to be no good reason in public policy, no mischief which has been met by the approach in Miller.  There does not appear to be any in fact good practical reason why one might suddenly create adverse consequences for a person not giving a sworn account on a sentencing when there are remain liberty consequences and pejorative and negative fact findings available against that person.

EDELMAN J:   It might be said against you that that is the underlying policy of 132C.

MR HOLT:   I think our only answer to 132C is a very short one, which is either accepted or not, which is that 132C alters the standard of proof not the burden and had Parliament wished to reduce - to change the burden then it could have done so.  What it did was to respond to Storey’s Case and to effectively revert back to what had been understood to be the common law at that point.

BELL J:   The practice in Queensland prior to the enactment of 132C had been, as I understand it, that factual findings, including adverse factual findings, were made on the balance of probabilities for the purpose of sentence.

MR HOLT:   Yes.

BELL J:   And in that regard, that practice differed from that in a number of other Australian jurisdictions.

MR HOLT:   That is as I understand it, your Honour, yes.  That was the position but there are a couple of things of course that have occurred since then.  Section 132C is a clear statutory change to a position enunciated by this Court.  It clearly has had effect.  We are now, though, in 2019, following the statements of principle which the Court will be well familiar with from this Court in terms of effectively the commitment in Australian contemporary common laws, the accusatorial nature of the criminal trial described ‑ I think, from memory in Azzopardi is now deeply embedded in the common law, one of the most important features of the criminal trial – if it is accepted that the features of an adverse contested fact finding of this kind raise those kinds of issues of liberty of the Crown alleging and being able to prove conduct against an individual, which give rise to that kind of commitment but also as a matter of the principle of legality, given that there are liberty consequences to this, one would be, in our respectful submission, cautious about drawing too much without explicit words to that effect from section 132C.

There ought not be statutory diminution of those fundamental rights, if we can put it that way, in the absence of a clear statement to that effect, certainly not in the way in which this Court has continued a commitment to the protection of the principles that flow from the accusatorial nature of a criminal trial.

That argument, of course, is premised on the Court accepting our submission that, at least in these circumstances, the features of it allow it to be described in the same way and warrant, in effect, the same level of protection, in our respectful submission.

I think in answer to all the questions that the Court has asked me over the course of the last little while I would be repeating matters if I went through my notes further.  So unless there are any matters I can assist with, those are our submissions.

BELL J:   Can I just inquire, you sought leave to amend ‑ ‑ ‑

MR HOLT:   I did and I will try and work out how I am going to amend it – might I do that once I have sat down just so that I am not – I do not end up with drafter’s remorse again following, I will be very grateful. 

KEANE J:   Just before you sit down, in paragraph [37] of the sentencing judge’s reasons at 18, his Honour recalls:

The parties in this case accept that these principles apply to the resolution of disputed questions of fact.

Now, no doubt it cannot be said against you that you accepted it, therefore you cannot agitate these questions because everyone was bound by Miller.  But I take it there was no formal stating the position or reserving of the position about the correctness of Miller ‑ ‑ ‑

MR HOLT:   No, not as I understand it.

KEANE J:   The only reason I ask is just that when you speak of the architecture of the judgment it might be said on one view that what his Honour was doing was referring to the authority as to how to proceed in relation to sentencing – in relation to fact finding on sentence and it might be said that if there had been some formal reservation of a position of the kind that you are now advancing, his Honour’s judgment might have been more astute to be clear about just whether he was drawing inferences and just what he was doing.

MR HOLT:   With respect, that is an entirely fair criticism of – it is an entirely fair comment to make about what the learned sentencing judge did or did not do, that had his Honour been alerted to that he may well have drafted his judgment a different way.

KEANE J:   He may have been a little more explicit one way or the other about what he was doing.

MR HOLT:   Our submission ultimately is accepting that and properly accepting, I hope, the real question is what his Honour actually did and what his Honour did was, as we submit, it is in our submission very clear that his Honour did, and Miller was wrongly decided then the sentencing process was infected by something which can only be described as a fundamental error, albeit one that was understandable in the circumstances for his Honour to make and that it would not – that conduct had effect of not reserving the point at that stage it would not, given the circumstances, disentitle the appellant to any relief in this Court. 

KEANE J:   All right.

MR HOLT:   Those are our submissions.

NETTLE J:   Just one thing, Mr Holt.  Would Weissensteiner have any application in this case?

MR HOLT:   Our submission is no.  It has certainly never been suggested by the Crown at any point and I know that does not answer the question from this Court’s perspective.  In the main, it is probably wise enough for me to refer to the way in which – I do not need to take the Court to it, the way in which this Court reconciled or probably more accurately considered that it did not really need to reconcile RPS and Weissensteiner and Azzopardi, where in essence, in our submission - and I will just give

the Court the reference in Azzopardi, it is at page 75 of the report at paragraph 68. 

Effectively, reconciling Weissensteiner and RPS, the position is in rare and exceptional circumstances, a comment will be warranted at a trial and it will only be where there is an additional matter only within the knowledge of the defendant, it will never be permitted merely because the accuser has failed to contradict some aspect of the prosecution case.  I take the Court to Azzopardi because arguably, that last prohibition is not one that appears, at least, on the face of the Weissensteiner judgment itself.

BELL J:   Here, the contested factual issues largely turned on acceptance or otherwise of Mr Scown’s evidence and I think in one instance it may have been the evidence of the natural father of the child. 

MR HOLT:   Yes, on a point of something having been said to him over the course of the weekend about the child being hard to deal with.

BELL J:   So, these are all instances where one is looking at an inference being drawn, not in circumstances where it is peculiarly within the knowledge of the appellant – there is direct evidence about the subject matter from witnesses in the Crown case.

MR HOLT:   Exactly so and, indeed, one sees that by the very clear way, with respect, that his Honour Justice Applegarth goes through each of the contested findings of fact.  They all fall into that category.  So, the short answer to your Honour Justice Nettle’s question is no.  Our submission is that it would not fit within that exception because, of course, if it did that would be a perfectly legitimate end run around the argument that we make.  But our submission is that it does not.  May it please the Court.

KIEFEL CJ:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, may I assume the Court will be adjourning at 11?

KIEFEL CJ:   Yes.

MR BYRNE:   Could I deal with two preliminary matters?  The first is that we have noticed the reasons of the sentencing judge in the core appeal book come uncoloured.  Now, I mean by that the attachment was coloured in the original to draw attention to what was in contest.  We have nine copies of the reasons with colouring available.  May we hand those up?

KIEFEL CJ:   Yes, thank you.

MR BYRNE:   They have not been numbered according to the core appeal book page numbers, however.  Could I turn to the second matter – preliminary matter – and it is the unfortunate occurrence of having to accept some errors in the written submissions.  Could I bring those to the Court’s attention?  Firstly, at footnotes 68 through to 70 inclusive – which are on page 15 – your Honours will see that we have footnoted paragraph numbers for each of those American cases that have been cited.  There are no paragraph numbers in the cases as they are in the joint book of authorities.  I can very easily explain.  We were on an expedited timetable – we were using an online version and did not realise the mistake.

However, could I ask that instead of the various paragraph numbers that these pages be noted?  At footnote 68, page 606; footnote 69, page 527; and that for footnote 70, page 1128.  The other one is in footnote 82 – it is a pure typographical error.  We have referred to the New Zealand authority of Gunthorp and referenced paragraphs [38] to [42] inclusive.  It should be [138] to [142] inclusive and, indeed, the New Zealand Law Reports report of Gunthorp does not have paragraphs [38] to [42] in it.  So, we apologise for that. 

The course of discussion with my learned friend will allow me to shorten my oral submissions greatly.  For that reason, I will not be following vigorously the outline which has been provided this morning.  It had been intended to take the Court through a number of passages, predominantly of Weissensteiner and Azzopardi.  I think there is little need to do that now. 

I do however wish to make this observation out of Weissensteiner, that the judgment of the plurality of Chief Justice Mason, and Justices Deane and Dawson at page 227 of the report, 436 of the joint book of authorities, cited a statement by Justice Windeyer in Bridge v The Queen (1964) 118 CLR 600. Quoting from page 615:

“An accused person is never required to prove his innocence:  his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt.  A failure to offer an explanation does not of itself prove anything.  Nor does it, in any strict sense, corroborate other evidence.  But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true.  That is to say a failure to deny or explain may make evidence more convincing -

I pause to note that the other plurality judgment in the majority, that of Justices Brennan and Toohey, also cited that passage of Justice Windeyer in Bridge v The Queen.

NETTLE J:   That really is Jones v Dunkel reasoning, is it not?

MR BYRNE:   Yes, and the decision in Weissensteiner – RPS, but I will move past it to Azzopardi – placed limitations around the correct usage of it in a trial context and one of the real reasons for that, or a few of the real reasons, are around, and I quote from the words of the plurality in Azzopardi, the notorious risk of the misuse of that style of reasoning.  So there were limitations put around how and when it could be done.

Part of that also is because of the fundamental accusatorial – and we do not walk away from the fact that this contested sentence hearing was accusatorial – but it was the fundamental accusatorial system that was at play in the trial where the presumption of innocence was almost - for reasons that I will come to we say that is not the case in sentencing, that it either does not apply or it wanes in its significance in the sentencing process.

Chief Justice Mason, Justices Deane and Dawson noted that they had been quoting extensively from cases than might otherwise be necessary.  They say this at 227 of the judgment, 436 of the joint appeal book:

It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.

Now, I take your Honour Justice Nettle’s point, nonetheless that there is still this fencing that has been put around it by Weissensteiner, by RPS and by Azzopardi in a trial context and there are, at least in Queensland, very real reasons to distinguish between the sentencing phase and the trial phase.

BELL J:   Chief Justice Gleeson in Azzopardi I think referred to the same passage from Justice Windeyer’s analysis ‑ ‑ ‑

MR BYRNE:   He did.

BELL J:   ‑ ‑ ‑ in Bridge.  His Honour, of course, was in the minority.  It is difficult to see – it is difficult to reconcile the analysis in Bridge with Azzopardi and RPS.

MR BYRNE:   Yes.  Our response to that is that that is part of the development since 1964 when Bridge was pronounced.

BELL J:   Yes.

MR BYRNE:   Now, both of the majority judgments referred to this concept of a court being more readily – may more readily accept evidence.  That is the wording of Justice Holmes, as her Honour then was, in Miller.  We simply make that point that more readily in Miller does not mean more ready to make it just because there has been no contradiction.  It is part of a long history of the cases that have come through. 

To complete very quickly, both the majority judgments referred to a concept of the inference or the fact finding being strengthened by the failure to provide contrary evidence when it might be expected.  Because of something your Honour Justice Bell raised with my learned friend can I also point out a passage of the judgment of Chief Justice Mason, Justices Dawson and Deane, pages 228 to 229 of the judgment, 437 to 438 of the joint appeal book – joint book of authorities, and it is from the very last line on the first page:

There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis –

It continues.  I will not read the whole passage.  Now, a little further on, at 438 of the joint book of authorities, their Honours said:

The fact that the accused’s failure to give evidence may have this consequence is something which, no doubt, an accused should consider . . . whether to exercise the right to silence.

There is recognition of the case of Kops.  It continues:

it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.

We, in our written submissions, have framed that more in terms of acknowledging that the exercise of this so‑called – and I deliberately say the so‑called right to silence because it is not well defined - but of that so‑called right to silence may have consequences, and we say that is the case whether it is at trial or at sentence.  Chief Justice Gleeson in Azzopardi spoke of the decision of whether to testify or not as being “rarely devoid of consequences” and we say that is also applicable to the sentencing process.

I will skip past RPS not because it does not deserve consideration but simply because Azzopardi came along shortly afterwards and considered any conflict between it and Weissensteiner.  It set up the limitations, to use the vernacular the “ring fencing”, of when this could be used, when the fact that there had been a decision not to testify could be used.  It has been accurately summarised by my learned friend.  I will not take your Honours through all of those but I repeat what I had said in answer to the question from Justice Nettle.  It relied heavily on the notorious risk of misuse by the jury, if they were not told how and when to use the fact of the failure to testify, and it relied heavily on the accusatorial process in which the presumption of innocence was first and foremost. 

Now, what it did not do is challenge this proposition that a court may more readily accept contrary evidence or a drawing of an inference in the absence of evidence when it would be expected.  I also should bring to the Court’s attention specifically, there are some complications in looking between Azzopardi and Weissensteiner or, indeed, Azzopardi and the sentencing process in Queensland because for Azzopardi, indeed, RPS on the one hand, the then section 20(2) of the Evidence Act (NSW) applied which placed prohibition on direction from a trial judge to a jury.

Broadly speaking, it prohibited the prosecutor from making any reference to the failure to testify and very much limited what could be said by a trial judge, particularly that it could not in any way suggest the failure to testify was because of a consciousness of guilt.  They are my words, but that is the general effect.  We come then to Miller which ‑ ‑ ‑

KIEFEL CJ:   That might be a convenient time.

MR BYRNE:   Indeed, I have lost track of the time, thank you, your Honour.

AT 10.59 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.15:

KIEFEL CJ:   Yes, Mr Byrne.

MR BYRNE:   Thank you, your Honour.  I was about to take the Court to R v Miller (2004) 1 Qd R 548. It is found at page 723 in the joint book of authorities. Your Honours, I know, will be familiar with the judgment given at centrality, and I simply make this observation, that from paragraphs [18] to [23], pages 726 to 728 of the joint book of authorities, her Honour considered the effect of Weissensteiner, RPS and Azzopardi. 

Her Honour made some observations about the extent to which those cases applied to the sentencing process in Queensland at paragraphs [24] to [26], and I pause here to note that Justice Williams, at paragraph [3] of the judgment, page 724 of the joint book of authorities, expressly agreed with her Honour:

the presumption of innocence was not relevant ‑

and that it would ordinarily have been expected the defendant, there, that is in Miller, would have testified as to his state of knowledge.  So that is just setting the context for that point.  Her Honour’s conclusions, as we summarise them, are this, that at sentence, and that is necessarily in light of that sentence in Queensland, but it may in fact well be wider, the presumption of innocence no longer applies but the right to silence is maintained.  Secondly, the forensic decisions which might weigh against testifying no longer apply, or at least not to the same degree.  That is both from paragraph [25]. 

Paragraph [26], given the operation of section 132C of the Evidence Act, the task, in Queensland, the task of fact finding on sentence is more akin to a civil trial than a criminal trial.  Can I pause here to note that, on our understanding, Queensland is the only jurisdiction in this country where the fact finding on sentence is at less than beyond reasonable doubt. 

Might I, with respect, correct something that your Honour Justice Bell posited to my learned friend, only in a minor way.  Your Honour spoke of your understanding of, previously, that in Queensland it was on the balance of probabilities.  It was, until the decision of a five‑member bench of the Queensland Court of Appeal in R v Morrison.

BELL J:   That led to, what, section 132? Yes.

MR BYRNE:   Exactly.  Now that is referenced at paragraph [39], sorry of our outline.  That is, as I will come to, an important differentiating feature, not only between the States, but between fact finding on sentence in Queensland and at trial.

The fourth conclusion of her Honour Justice Holmes, also at paragraph [26], is that where the judge is the fact finder, there is no risk of judicial comment or directions detracting from the jury’s role as the tribunal of fact.  We accept, and have never tried to resile from the proposition, that her Honour’s conclusion at paragraph [27] is to the effect that the Weissensteiner line of authority does not have application on fact finding on sentence.  So, it is Weissensteiner‑centric conclusion – if I can put it badly but put it that way. 

But, when one actually looks at what was extracted by the sentencing judge, in our submission – and this is coming to paragraphs [36], in particular, and it goes into [37] that Justice Edelman had rightly identified with my learned friend – so at page 18 of the core appeal book.  What is missing from there are the references to RPS, Azzopardi, Weissensteiner, Dyers, all of those cases.  When one looks at what was extracted by the sentencing judge, our submission is it does not have that same flavour as it actually had Miller.  Now, we cannot deny that it has been cited from Miller.  But, as was said in the course of discussion with my learned friend, what is important is what the sentencing judge did with it – what he understood it to be meaning.

We cannot say – and we have never tried to say – that the fact that the parties agreed that that statement was correct should be held against the appellant.  But, it is relevant to an understanding of how the parties understood how it was being applied at the time.  There is an analogy there in terms of directions to a jury in a trial situation where there is no objection taken to a particular direction.  It can – not always – be of relevance to understand how it was understood at the time. 

So, it is from there that that is part of – to adopt the phraseology of my learned friend – the architecture of the reason starts.  But, we emphasise “start”.  That is not the be‑all and end‑all of it.  Whilst, with respect, my learned friend had sought to compartmentalise other parts of the reasons, one cannot, they need to be read together.  So, if I could take the Court to page 36 of the core appeal book to paragraphs [138] to [141] but I particularly want to emphasise at [140] to [141].  His Honour had spoken of reservations:

about Strbak’s credibility and the reliability of many of the things which she told police –

But, then expressly reminded himself that the rejection of it:

does not necessarily lead to the conclusion that the contested facts are thereby proven. 

That is a statement, in our submission, of simply dealing with the evidence as it sits.  As it falls, all of the evidence needs to be considered.  There is none of the strengthening from Weissensteiner.  Importantly, paragraph [140] continued:

The onus remains upon the prosecution to prove the contested facts, if it can.  In addition, my reservations about the credibility and reliability of parts of her account of events does not automatically bolster the credibility and reliability of certain prosecution witnesses, such as Scown.

Again, we submit, a statement of assessing the evidence as it fell:

The evidence relied upon by the prosecution must warrant acceptance in its own right.

His Honour then continues through to [141] in terms of giving less weight and that is a passage which was referred to by Justice McMurdo in the court below and has been referred to in discussion.  There is also, I should say, merely for the sake of completeness rather than for any other reason, the Court was taken to paragraph [61] at page 113 of the core appeal book.  It is also found at paragraph [44] on page 110.

Can I move then to paragraph [142], as your Honour Justice Keane did.  When one looks at what is said at [142], that gives support to our submission as to what his Honour was expressing at [140] to [141].  Our submission then is that that is not a compartmentalised separate consideration that if that was all that had been said there could be no complaint about, it is part of the overall architecture of this set of reasons, that each acts to support the other and must be understood in light of the other. 

We in our material have outlined – we actually made it as seven but it should have been broken out into eight areas.  One of them I have just taken the Court to.  Can I deal with it this way and simply provide the list of references, although I am happy to take the Court or any member of the Court to them individually, if that will assist.

EDELMAN J:   Just before you do, what do you say to the point that [140] to [142] are really in a section that starts just before [136], but it is a section which is concerned with quite comprehensively everything to do with her unsworn evidence rather than what to do with the lack of sworn evidence, if I can put it that way.  So, in the introductory part of the reasons, there are all of the considerations like at [36] and [37], what to do with lack of sworn evidence.  Then it follows quite methodically through all of the particular evidence that was given, including this unsworn evidence.  Then it moves to the findings of fact and applies both the section that is concerned with unsworn evidence as well as the principles that are concerned with the lack of sworn evidence.

MR BYRNE:   I think I understand the point your Honour is asking of me and I suspect the best answer I can give is by saying that the next seven areas exemplify what he did in terms of the lack of testimony and it is consistent, in our submission, with what he spoke of at [140] to [142] in dealing with the fact - in how the unsworn evidence is to be dealt with. 

On that basis, it might be worth going through these individually.  It shall not take long.  Could I take the Court – when I am talking of pages, it is to the core appeal book at page 33, paragraph [121].  The first five of these are directly in contest with the appellant - sorry, the first four, I beg your pardon.  The other three have not been spoken of by the appellant; that is not a criticism.  So at paragraph [121] it is simply a statement, in our submission, that the evidence that was before the court was not contradicted.  There is no suggestion of strengthening.  At page 44 ‑ ‑ ‑

BELL J:   But equally may I raise, just when one looks at the Court of Appeal’s analysis, paragraph [121] hardly accords with the view that all that the sentencing judge was doing was saying, “Because the contradiction is not on oath, I am going to give it less weight than I otherwise would”.  This is a clear indication there was no contradictory evidence.

MR BYRNE:   I take your Honour’s point.  I am just having trouble expressing what is running around at the moment.  The expression that he would give less weight to the unsworn evidence, in our submission, is so closely aligned with the proposition of not strengthening that it has to – it is not really a hand in glove, but it is very closely aligned to it.

So that, whilst the Court of Appeal observed that his Honour said he would give less weight to the unsworn evidence, because it has less weight it is not – that is not quite right – it has less weight.  But the other fact to be borne in mind is that one of the passages I have taken the Court to earlier was a statement that the jury would wonder what they should be doing with all of it.

Now, that can transpose in this setting, where findings have to be made by the sentencing judge, to dealing with not only the direct evidence before the Court, but the other circumstances which include a lack of testimony.  All his Honour is doing there is saying it is not contradicted.  Page 44, at paragraph [197], again simply a bare statement that it was:

uncontradicted by evidence from Strbak or any other evidence –

Page 46 at paragraph [207] - and this has been discussed in my learned friend’s submissions – our submission is that [207] is a simple statement of the fact that she did not give sworn oral evidence of a denial.  There is simply no statement that it was used to strengthen the findings that would otherwise be made.  Paragraph [208] is the frogmarching incident.  In the light that we submit this should all be looked at, the statement that:

This fact is proven by Scown’s evidence and is uncontradicted by evidence given by Strbak –

is again simply a statement of how the evidence has fallen, and what assessments it should be given.  If I move to the last three that have not been discussed by the appellant – page 50 at paragraph [232]:

There is no evidence from Strbak about how, when and why Tyrell sustained this scar.  The circumstantial evidence, together with the absence of evidence from Strbak, leads me to conclude that she probably caused the “smiley” injury to her son.

Now, on one view, we accept that that could be said and the fact that she has not testified adds weight to it.  But if one looks at the overall reasons, it is an innocent statement, as to how the evidence has fallen.

NETTLE J:   The circumstantial evidence about the smiley face was pretty light on, was it not?  There was some suggestion that she had done it to herself years before when she was with the former husband.

MR BYRNE:   Together with a denial by Scown.  I am sorry, your Honour has caught me a little off guard on that question.

NETTLE J:   I was just thinking, certainly you have got Scown saying, “Well, I didn’t do it”.

MR BYRNE:   Yes.

NETTLE J:   He did say that on oath.  You say this is just an absence of contradiction, do you, because there was really hardly any evidence to suggest that she had – here we have a statement by the judge, “Well, the fact that she has not given evidence about it helps me reach the conclusion that she did”.

MR BYRNE:   If it were used to strengthen, then that would be a Weissensteiner application.

NETTLE J:   It would.

MR BYRNE:   No argument with that, but we are simply saying – Mr McCarthy will be able to find the passage for me – that earlier on in the reasons at some point, as a general proposition, his Honour stated he preferred Scown’s evidence over Strbak’s.

NETTLE J:   There is no question about that.

MR BYRNE:   So here, in effect, it is said there is circumstantial evidence.  That circumstantial evidence must, although I do not think it specifically included Scown’s denial but it was there and there is nothing to contradict it.

NETTLE J:   But there is no direct evidence that she burnt her son with a cigarette lighter.

MR BYRNE:    No, there is no direct evidence of it.

NETTLE J:   There is just a scar and an inference being drawn that it was done with a cigarette lighter in the way in which it was suggested she had burnt herself years before when she was with the previous husband.  Yet this judge said, “I draw from the fact she has not given evidence about it that it is her.”

MR BYRNE:   In light of the circumstantial evidence, which must include Scown’s denial.

KIEFEL CJ:   You mean the fact that the scar was evident and that she did not refer to it at all.  Is some inference being drawn from that fact?  The scar had been present for some time and she had had an opportunity to observe it and she made no mention of it.

MR BYRNE:   Yes, she made none.

KEANE J:    In terms of the forensic context in which all this is occurring, in relation to the injuries to the child was it common ground that the injuries that had been inflicted on him, other than falls and so forth, were caused either by Scown or the appellant?  Was it a case where there were no other candidates, in terms of the forensic context?

MR BYRNE:   Yes.  I believe it is and I am just having that confirmed, yes.

BELL J:   Was that in relation to the last two or three days so that the forensic contest in terms of who inflicted the fatal injury may have been seen to come down to either Scown or the appellant by contrast with, I think, the smiley face scar might have been there for some time.

MR BYRNE:   Yes.

BELL J:    So that one might think that would leave open a greater number of possible explanations for it.  I just raise that because, as I understood it, neither party contested that in relation to the weekend of the child’s death it came down to either Scown or the appellant.  It just was not clear to me that one would apply that same reasoning to the smiley face scar.

MR BYRNE:   Given the greater passage of time, of course as a matter of common sense that opens up more at least theoretical possibilities.  As I recall the contest, and I am happy to be corrected, it was never contested that somebody else had inflicted such an injury. 

I am reminded there was medical evidence as to the degree of pain that would have been suffered by the child on the infliction of such an injury and that the evidence established that with her being, in effect, the sole carer of Tyrell, that it must have been something that was – the pain and injury – must have been something that was noticeable to her and the failure to do anything about it drew an inference that she was the one who had inflicted. 

Can I move to page 56, paragraph [267]?  It is really from about the seventh‑last line of that paragraph:

Viewed in the context of all of the evidence –

I will allow your Honours to read that.  The critical aspect is that:

Strbak has not given evidence about the call or what prompted it.  This makes me more inclined to find –

So, one might read, on one view of it, that the linking of the “this” is to the not giving of evidence.  We submit this, that this needs to be seen in a much larger context, commencing at paragraph [265], which is dealing with this unexplained request.  Your Honours will notice at paragraph [265] that there was evidence from Jason Cobb that she may have said:

“I can’t handle him” or words to like effect.

If the Court could go back to paragraph [122] on page 33, your Honours will see that the sentencing judge expressly stated that he:

not convinced that Strbak added “I can’t handle him” or words to like effect.

So, that places a clear linkage between [265] through to [267] – back to this earlier passage in the judgment which is the factual analysis of what had occurred around that, which commences at paragraph [106] and concludes at [122].  Our submission is that when it is looked at in that light, the “this” at [267] is, in fact, a reference to the suggestion that more than some exasperation occurred by the child’s mother.  We accept – and we must – it is where it is in the passage.  The use of the word “this” is not straightforward for us but we must confront it.  Our submission, and I will not take your Honours chapter and verse through all the paragraphs, is that when all of that is looked at, it is best understood as the sentence:

Strbak has not given evidence about the call or what prompted it –

by, in effect, putting parentheses around it.  This does not apply to what was in the immediate sentence, immediately preceding sentence.  And the final passage is at page 64 ‑ ‑ ‑

KEANE J:   You are reading it as “all this”.

MR BYRNE:   “All this” would be another way of reading it, yes.  [307] on page 64, this is again a reference to the frogmarching incident that was at [208], and simple statement was not contradicted by the sworn evidence.  So your Honours will have seen that the structure of the reasons is to set out factual matters and then come back to some of the conclusions, so, hence the duplication of the frogmarching, hence the duplication of “I can’t handle him”.  Our submission is that, when properly understood, in light of the whole of the reasons, the sentencing judge did not use the failure to testify to strengthen the fact that was otherwise found.

Now, I think it was your Honour Justice Bell, I may be wrong, raised as to whether there was any material in the transcript ‑ in the interviews or the statement of the appellant before the court on the frogmarching incident anyway.  We have spoken with our learned friends; if it will be of some assistance to the Court, we can put together the transcripts of the interviews and the statements, and we can put together a jointly agreed document that references each of these passages as to what evidence there was in those.  Would that be of assistance?

KIEFEL CJ:   Yes, thank you, that would be.  Thank you, Mr Byrne.

MR BYRNE:   May we have a week to do that?

KIEFEL CJ:   Yes, of course, thank you.

MR BYRNE:   Thank you.

BELL J:   Mr Byrne, could I just take you back to the submission that you were making relating to Miller?  You put that there were distinct features to the process of fact finding in Queensland ‑ ‑ ‑

MR BYRNE:   Yes.

BELL J:   ‑ ‑ ‑ by reason of section 132C.  You also made a submission that, in sentencing, the presumption of innocence does not apply.  Now, I think I understand that submission, and that applies generally, but it is just in relation to the significance you attach to section 132C.  I think this Court, in CFMEU v Boral, talking of the accusatorial system of criminal justice, in the context of the trial, not sentencing ‑ ‑ ‑

MR BYRNE:   Yes.

BELL J:   ‑ ‑ ‑ but made clear that the right to silence is a product of that system, as distinct from a corollary of the burden of proof in criminal proceedings.  That statement of principle would seem to support Mr Holt’s contention that we should not draw anything from 132C in relation to this question of the inferences to be drawn from silence.

MR BYRNE:   And, obviously enough, 132C does not change the burden of proof.  It rests on the prosecution.  So can I put that aspect to one side.  But what does change fundamentally is the presumption of innocence ‑ and I will come to more detailed submissions – we say does not apply on sentencing.  Secondly, it is the lower standard.

Now, at trial level the burden and standard and the presumption of innocence all go hand in hand to create protections for the charged person on trial.  This lowering of the standard to what is in effect the civil standard ‑ with some Briginshaw considerations; can I put it that way – but the lowering to the civil standard does mean that in the words of Justice Homes it is more akin to a civil trial, particularly when the presumption of innocence is taken into account as well.

KEANE J:   So if you have an account on one side and no account on the other it is, as Justice Holmes said, not surprising that it is matter of commonsense.  You find one account – you decide on which ‑ there is the account given, you find the account more probable than not because it is not in any way contradicted.

MR BYRNE:   That is right.

EDELMAN J:   Is your submission ‑ ‑ ‑

MR BYRNE:   I am sorry, can I just finish that answer?  I stopped a little short.  Provided there is nothing else that has, can I say, an inherent difficulty with the evidence around it.

KEANE J:   Well, we see here that the sentencing judge did not accept some of the evidence given by the appellant’s former husband in relation to the conversations that occurred, notwithstanding the fact that it was not contradicted.

MR BYRNE:   Yes, that is so.  I am sorry, Justice Edelman.

EDELMAN J:   Is your submission therefore dependent upon section 137C?

MR BYRNE:   Section 132C, yes.

EDELMAN J:   Sorry, 132C.

MR BYRNE:   Yes.

EDELMAN J:   So if in the absence of section 132C the approach in Miller could not be applied, do you not have an issue with the principle of legality that Mr Holt raised?

MR BYRNE:   I suspect that I have not followed your Honour’s question.  I will try to answer it, but if I am wrong please bear with me.

EDELMAN J:   If 132C is ameliorating or altering what would otherwise have been an important common law principle, why would it not be read against that light and read in light of the approaches taken based on the principle of legality?

MR BYRNE:   I am sorry, I did misunderstand your Honour’s question.  That is my fault, not your Honour’s.  The principle of legality of course recognises that the rights can be abrogated by clear legislative intent and our submission is that this is very clear that it is to be the lesser standard and it is notorious therefore that it is not what is used in shorthand terminology the criminal standard of proof, that one must go – one follows the other.  Together with the fact that the presumption of innocence we say does not apply on sentence, then it is more akin to a civil trial, notwithstanding the presumption of legality.

NETTLE J:   Mr Byrne, when you say that the presumption of innocence ceases to apply in the sentencing, is that because it is civil or is it because it ceases to be an accusatorial process once one gets to sentencing?

MR BYRNE:   No, it is because the presumption of innocence attaches to the guilt for the offence not the guilt for the precise conduct.

NETTLE J:   Yet the sentence that will be passed on the prisoner will be entirely dependent in a case like this of proof of the aggravating circumstances for which the Crown contends.

MR BYRNE:   Yes.

NETTLE J:   Of which the Crown accuses the prisoner.

MR BYRNE:   Accuses.

NETTLE J:   Why is it not accusatorial just in the same why as the trial?

MR BYRNE:   We have not said it is not accusatorial but we say it is not in the same way as the trial because, when one looks at authority, one finds support for this proposition that it does not apply at the sentence, that it finishes on the finding of guilt.  Can I turn to that now?

That is the position in Canada, R v Shropshire 102 CCC (3d) 193 (1995). It is found in the joint book of authorities at page 833. Can I preface this by saying that Canada is a jurisdiction where Weissensteiner reasoning can apply at trial in appropriate cases.  On page 832, I will let your Honours read paragraph [39].  Part the way through it says:

the right to silence –

which is a different topic:

which is fully operative in the investigative and prosecutorial stages . . . wanes in importance in the post‑conviction phase when sentencing is at issue.

There is then a caveat put on that agreement where there has been a plea of guilty, which of course occurred here.  At paragraph [42] the court noted that:

At the sentencing stage, the Crown has already proved beyond a reasonable doubt that the accused has committed the crime for which he or she stood charged or . . . has pleaded guilty to -

Over onto page 833 of the joint book of authorities:

it is incumbent upon the accused to play a somewhat active role in the process.

That may be the very statement in issue here:

I note that the right to silence is a manifestation of the presumption of innocence -

There are authorities given:

The presumption of innocence flows to those “charged with an offence” or suspected of having committed one; once an individual has been convicted of an offence he or she is no longer simply “charged”.

That, as I said, was a 1995 case.  It was reaffirmed in 2015, some 20 years later, in R v St‑Cloud 2 SCR 328. Can I take the Court to pages 885 and 887 of the joint book of authorities. At paragraph [111]:

it is important to note that, at the time of sentencing, the accused has already been convicted and is therefore no longer presumed innocent.

At page 887, at paragraph [117], in a continuation of the same judgment, Justice Wagner stated:

Allow me to repeat that the accused has a right to be presumed innocent at the time of the release hearing –

Now, a release hearing we would call a bail hearing:

which is no longer the case at the time of sentencing.

So that is, as best as we can find, the statement of the current principle in Canada.  It is broadly the approach which is taken in England.  Could I take the Court to R v Underwood [2005] 1 Cr App Rep 13 – it is at page 912 of the joint book of authorities, paragraph 7.  Whilst there is no express statement there of the presumption of innocence not applying, the procedure which is expected to be used in England is inconsistent with a presumption of innocence applying, in our submission.

BELL J:   In looking at the situation in England, it may be necessary to take into account the statutory modification relating to the drawing of adverse inferences that is available to the prosecution at trial.

MR BYRNE:   Perhaps we should have put that written outline.  Yes, it is very much a different position.

BELL J:   So it would be extraordinary if one could not draw ‑ ‑ ‑

MR BYRNE:   At sentence.

BELL J:   ‑ ‑ ‑ for the purpose of sentence, an inference that one could at the trial.

MR BYRNE:   Yes.

BELL J:   Yes.

MR BYRNE:   We should have put that in the material.  We have referred in our written material to a quote from Lord Mustill in R v Director of Serious Fraud Office; ex parte Smith [1993] AC 1 at 31. I will not take the Court to it, for the very reason your Honour Justice Bell has outlined. There is also the added twist in that that it refers to the presumption applying at trial.

BELL J:   Yes.

MR BYRNE:   So it begs the question, what is a trial?  However, our submission is consistent with Article 66 of the Rome Statute of the International Criminal Court.  That is in the joint book of authorities at page 976:

presumed innocent until proved guilty –

It is consistent with the proclaimed but not yet active section 32(1) of the Human Rights Act 2019 (Qld). It has been proclaimed to commence on 1 January 2020. In that provision, that also provides:

until proved guilty –

We have three other sections from Human Rights Acts that we have located. May I hand nine copies of each of the relevant provisions to the Court? Your Honours have been handed section 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). At subsection (1), presumption of innocence:

until proved guilty according to law.

Similarly, the Human Rights Act 2004 (ACT), section 22(1) – sorry, not subsection (1) – section 22(1), a presumption of innocence:

until proved guilty according to law.

The same provision can be found at section 25 of the New Zealand Bill of Rights Act 1990.  The simple point that we make, your Honours, is that this is not a novel proposition at all.

NETTLE J:   Do you say that these Human Rights Acts have the effect that there is no presumption of innocence during sentencing?

MR BYRNE:   At the very least it wanes into some degree of insignificance.  But, on their face, there is a presumption “until proved guilty”.  It is a Human Rights Act which has chosen not to deal with a presumption after that time or the penalty in position phase.

NETTLE J:   Is it not the position in a case like this that the criminal offence which is referred to in these Human Rights Acts is the criminal offence as finally discovered.  It can vary from simple negligent manslaughter to something approximate to murder.  You do not know where in the scale it is until the facts of the offending have been proved according to law.

MR BYRNE:   We submit that in light of what is said clearly in Canada about the matter that it attaches only to the time of finding of guilt of the offence rather than of the conduct.  

NETTLE J:   These State Acts are what reflect that, do you think ‑ ‑ ‑

MR BYRNE:   It is what we suggest, yes.

NETTLE J:   Yes.  Thank you.

BELL J:   Not long ago, Mr Byrne, you took us to a passage in an authority that referred to the right to silence being, as it were, the product of the presumption of innocence.  The right to silence might be thought to be informed by a number of principles.

MR BYRNE:   Yes.

BELL J:   I do not understand it to be an issue that the appellant had the right to silence at sentence in that she could not have been compelled to give evidence.  One of the reasons that is offered for the principle that one does not draw an adverse inference from the exercise of the right is the right would disappear if one did draw such an inference.  So that even if one were to put the question of the presumption of innocence to one side, it might be thought there were still powerful reasons for not drawing an adverse inference from the exercise of the right at sentence.

MR BYRNE: Our answer to that comes back to the proposition that the right to silence existed ‑ and we have never suggested that it did not exist at sentence ‑ although not pellucidly clear, it is reflected in section 8 of the Evidence Act (Qld). Should she have chosen to testify, she lost the privilege against self‑incrimination by virtue of section 15. One has a right to either remain silent, or not, and the choice is rarely devoid of consequence, if I may use Chief Justice Gleeson’s statement from Azzopardi.

Similarly, this Court in Mule, or, I am told, it might be pronounced Mule ‑ somebody in Western Australia told me ‑ the Court has observed that directions as to the use to be made of the differing weights is not an abrogation of the right to silence.  These are all very finely balanced, we accept, and of course our principle position is at the day, the sentencing judge did not use Weissensteiner reasoning.  The lessening of the standard of proof is significant not only because it aligns, at face value, with the civil standard of proof, but one, we submit, needs to look at it in this light, that it is incongruent that penal interference with rights and liberties could be achieved on the lesser standard.

I am not expressing that well.  The lesser standard attaches to the point of guilt, although the consequences of what the precise conduct is may be very significant, and they were in this case, if one looks at the spectrum of what could have been found.  The lesser standard, however, is brought about by legislative interference ‑ intervention might be a better word.  So that legislative intervention brings with it the fact that a presumption of innocence is traditionally attached to the higher standard of beyond reasonable doubt, and so we say is at least consistent with those steps.

We accept that our proposition is inconsistent with the American position reflected in Mitchell v United States, which dealt with sentencing, and in turn drew on Griffin v California which dealt with the directions at trial.  Notwithstanding, may I respectfully observe, a strident dissenting opinion by Justice Scalia.  It remains, as we understand it, the law in the United States, but it is not the law that the inferences adverse to the defendant can never be drawn.

BELL J:   I think Mitchell needs to be understood in the context of the Fifth Amendment ‑ ‑ ‑

MR BYRNE:   I was about to, yes.

BELL J:   ‑ ‑ ‑ and the Fifth Amendment refers to non‑compulsion in any criminal case as distinct from trial.

MR BYRNE:   Yes, exactly.  Your Honour has taken some of those words out of my mouth.  For example, the circuit courts of appeal have held that failure to attend for some testing can draw an adverse inference as to rehabilitation and so forth.  There have also been examples which we have put in our written outline where the onus has been borne by the defendant and has not been met by silence.

BELL J:   But here, Mr Byrne, on conventional principles it might be that in some respects – I do not know about failure to participate in rehabilitation – but where an offender seeks to mitigate the sentence that might be imposed, different considerations apply.  I mean, we are concerned here solely with the factual finding of the basis on which sentence is to be imposed.

MR BYRNE:   We do not seek to dissuade your Honour from that.  We simply are trying to make the point that Mitchell is not a blanket statement that an inference can never be drawn adverse from silence.  Your Honours, the other matters which Justice Holmes spoke of in Miller I have really spoken about and I will be repeating myself largely if I were to continue down that track. 

I do, however, want to emphasise this point if I can.  This is the point about where the judge is the fact finder there is no risk of judicial comment or directions detracting from the jury’s role as the tribunal of fact.  This was a risk which was recognised by the majority in Azzopardi at paragraph 52, joint book of authorities, page 58. 

But there is a further aspect to it that we impress on the Court, and that is this, that as I have already submitted, the judgments, particularly RPS and Azzopardi, but also Weissensteiner, recognise the notorious risk of misuse by a jury and that risk must necessarily be greatly mitigated, if not eliminated, by the fact that it is being handled by a judge whose reasons are open to scrutiny. 

In terms of disposition, given the amendment that has - or is about to be sought to the grounds of appeal, our point about jurisdictional error goes away.  We had to face the ground that we were coming here to face.  We were not trying to be overly technical. 

If the Court undertakes the – or if the Court reaches the point of deciding that the Court of Appeal erred in making the finding, then the appeal is to be allowed and it is what happens after that.  It really needs to go back to the Court of Appeal or to the Trial Division.  Now, I simply say the Court of Appeal or the Trial Division because there is a mechanism if you were to remit it to the Court of Appeal under one of the sections of the Supreme Court of Queensland Act 1991 for remittal back to the Trial Division.  That, we say, is really the appropriate place, the Trial Division ultimately – sorry, that is if you find that Miller was incorrectly decided and the sentencing judge relied on it and the Court of Appeal was in error in how it approached it. 

I have been given a note to do with the - a reference to the medical evidence about the smiley face scar is at page 25 of the core appeal book at paragraph [83], and that relates back to what I had paraphrased when I had clearly taken instructions from my junior.  So that was just tidying off that loose end.  Now, is there any other matter that I can assist the Court with?

KIEFEL CJ:   No, thank you, Mr Byrne.

MR BYRNE:   Thank you, your Honours.

KIEFEL CJ:   Yes, Mr Holt.

MR HOLT:   May it please the Court.  As I foreshadowed I can indicate that the way in which we seek to amend the ground of appeal is such that it reads as follows – and I have shared this with our learned friend:  the Queensland Court of Appeal erred in concluding that the reasoning of the sentencing judge did not involve drawing adverse inferences more readily and accepting Crown evidence more readily from the appellant’s decision not to give sworn evidence.  I seek leave in those terms and, if it pleases the Court, file an amendment.

KIEFEL CJ:   Yes, you have leave.

MR HOLT:   Thank you.  Can I deal then, only briefly with our matters in reply?  In terms of the question of what his Honour Justice Applegarth, in fact, did, your Honours can go through each of those references but we respectfully urge the Court to continue to bear in mind that his Honour, at paragraph [37], said these words:

In the absence of sworn evidence by the defendant . . . I can more readily accept prosecution evidence and draw inferences invited by the prosecution –

and having acknowledged that he could do that, our respectful submission is that it is difficult, with respect, without stretching the language of the judgment, as it is later used, to conclude that his Honour did not do that.

Can I then turn to the two matters of reply in relation to the more basic point – the more substantive point – which is the question of whether the Azzopardi protections, in effect, ought apply in these circumstances on contested facts.  Our learned friend made much of the references in Miller itself by her Honour Justice Holmes – as her Honour then was – to the fact that one of the mischiefs that the Court was concerned with in that case was the risk of misuse by the jury of the evidence.  Thus, it was a question – it was suggested, we think – of jury direction.

In our respectful submission, that would be a misunderstanding of the importance of the principles in Azzopardi.  Azzopardi is not saying, as we understand it, what is to be said to a jury is this protective blanket direction about non‑use merely to avoid the jury reasoning in any way along these lines at all.  What it, in fact, has is a much more substantive base which is that reasoning, along the lines that are prohibited by Azzopardi – other than in the rare and exceptional circumstances – is, in fact, substantively wrong and for the reasons, in essence, that your Honour Justice Bell noted in the course of our learned friends’ submissions, which is that the right to silence becomes, in effect – if I can slightly misuse an analogy – pyrrhic – because a person who knows that there will be consequences for not giving evidence is not in many ways exercising a free choice to make that decision.

KEANE J:   Well, in relation to that, if at sentence the accused does not say anything to indicate remorse, and the judge says, “There is no evidence of remorse”, and increases – or affixes a penalty that reflects that, is that in derogation of a right to silence?

MR HOLT:   No, not in our respectful submission.  And it is the distinction that is drawn in Mitchell and the American cases which we think has some real force, which is that there is a genuine difference, and that is why fact finding on sentencing is more complex than the question of elemental proof at trial.  The absence of a mitigating feature is a different proposition to the presence of an aggravating feature, particularly where it relates to the presence of a fact.

NETTLE J:   Well, the burden is on the accused, under Filippou, to prove that a mitigating circumstance of ‑ ‑ ‑

MR HOLT:   Exactly so.  And there is a complexity, of course, at times ‑ and the one your Honour Justice Keane raises may be one of them ‑ as to precisely whether you characterise a particular situation as the presence of an aggravating feature, or the absence of an aggravating feature, or the presence of a mitigating feature.  But apart from that complexity, no, the point your Honour makes is – we would accept that is so.

And it really comes down to – it allows me to segue into our primary proposition in reply, which is that to suggest that section 132C and the absence of the technical application if, indeed, it does not technically apply, of the presumption of innocence, to make it more akin to a civil trial, just misses, with respect, the very basic point, which is that the exercise which was being engaged in here is the proof by the state of conduct by a person which creates the prospect of ‑ the availability as a matter of law of increased penalty, including loss of liberty.

It just does not feel like it is akin to a civil trial, and does not feel like it, because it is not, and far too much work is being done, or sought to be done, by section 132C.  But we accept that that is not a proposition that could be applied to the absence of a mitigating feature like remorse, for example; we accept that.

Dealing briefly with the presumption of innocence, these terms are difficult, as this Court has recognised on a number of occasions.  The phrase “the presumption of innocence” really describes the process of criminal trial.  So it is hardly surprising that, when you get to sentencing, it is difficult to describe those words to sentencing. 

Though in many ways, for the reasons your Honour Justice Nettle noted in response to our learned friend’s submissions, in fact there is a presumption because there is the combination of an accusation, a right to silence, and significant consequences which mean, in effect, that if the Crown cannot get to that point, then there is a presumption at least that those facts do not exist until that point is proved.

Whether that is technically so or not, it is certainly substantively so.  If I can deal, without wanting to be technical about it, with the position that our learned friend has taken in respect of the interstate and Human Rights Act (Qld). Each of those Acts has within it a section, often at the beginning – for example, section 5 in Victoria and section 12, from memory, in Queensland ‑ and I have lost my note for a moment; I apologise – which makes clear that those human rights statutes do not derogate from the existence of any other protection of any human right in any other matter of law. It would be very odd if that could be used as a sword against a protection applying in circumstances of contested fact finding on sentencing, in our respectful submission.

Unless I can assist the Court, those are our submissions in reply.

KIEFEL CJ:   Thank you.  The Court reserves its decision in the matter and adjourns to 9.30 am on Friday, 13 December in Canberra.

AT 12.14 PM THE MATTER WAS ADJOURNED