Zenga v The Queen

[1994] HCATrans 459

LT lA 1

IN THE HIGH COURT OF AUSTRALIA	1
2
ADELAIDE	3
4
CORAM: BRENNAN, DEANE & DAWSON JJ	5 6
No. A4/94	7 8 9

10 11 12 13 14

PANFILIO ZENGA	APPLICANT	15 16
V	17 18
THE QUEEN	RESPONDENT	19 20 21 22 23 24 25 26 27

37

TRANSCRIPT OF PROCEEDINGS	28
.
29
THURSDAY, 25 AUGUST 1994 AT 11. 10 A.M.	30 31
MR K. BORICK, WITH HIM MR J.D. EDWARDSON, FOR APPLICANT	32
MR J.J. DOYLE Q.C., WITH HIM MR S.J. SMART, FOR RESPONDENT	33 34 35 36

LT lA	2	APPLICANT ADDRESS
MR BORICK:	In a nutshell, our argument for special	1

leave is that, firstly, this case is an appropriate	2
vehicle for the purpose of reconsidering Davies & Cody,	3
and in that instance I will be relying upon observations	4
made by Toohey Jin Chidiac.	5

Secondly, there is confusion and uncertainty as to 6

what allowance is to be accorded to what I call the jury	7
advantage; that is, the advantage that a jury has in	8
sitting and hearing the witnesses, and I will be	9
referring to Palmer in that instance.	10

Thirdly, whether the description 'unsafe and 11

unsatisfactory' should be discarded is, in itself, an	12
important issue, and I am referring to the remarks of	13
Hunt CJ in the case of Clough.	14

Those issues should be considered against a 15

background of alterations which have weakened the safety	16
net developed by the judicial system, and then the	17
result has greatly increased the importance of what was.	18
resurrected in Morris; namely, the independent	19
assessment by a Court of Criminal Appeal.	20

The clear issue arising,out of the written arguments 21

presented to the court lies in our assertion that the	22
respondent is incorrect when he submits, at para.3.6 of	23
his argument, that:	24
'When a court of Criminal Appeal is making its own	25
independent assessment, it must ask whether a jury,	26
acting reasonably, must have entertained a reasonable	27

doubt as to guilt.' 28

It is our submission that the correct test in the 29

circumstances of this case, stems from Davies & Cody,	30
and that there are three questions to be asked, or	31

issues to be considered:  Firstly, has some failure 32

occurred in observing the conditions which are essential	33
to a satisfactory trial? Second, is there any feature	34
of the case which raises the substantial possibility	35
that the conclusion arrived at was mistaken, and	36
thirdly, is there·any feature in the case which raises a	37
substantial possibility, arising out of the manner in	38

LT lA 3 APPLICANT ADDRESS

which the conclusion was arrived at, that the jury were	1
misled?	2
It is an important part of our submission, that in the application of the Davies & Cody type test, that the	3
4
allowance which is to be made for the benefit that the	5
jury had in seeing and hearing the witnesses, is a great	6
deal less significant, and in some situations, would	7

have no impact at all.	For example, it will depend upon	8
the feature which is identified.	If it related to one	9

of the basic requirements for a fair trial, then the so	10
called advantage would be negligible.	11

The feature identified by the applicant in this 12

case, and set out in our additional summary of argument,	13
goes, we would say, to the manner in which the	14
conclusion was reached; that is, the third leg of the	15
Davies & Cody type test, as I put it.	16

our argument is that the type of challenge raised in 17

this case was such that little depended on the jury's · 18

assessment of the witnesses. Issues such as 19

corroboration, the type or degree of warning that should	20
have been given, and the consequence of failing to call	21
a witness, all precede the actual deliberations by the	22
jury, and all clearly affect the manner in which the	23
jury should go about their task.	24
Thus, the error which we identify in the reasoning of the Court of criminal Appeal is that the court placed	25
26
too much emphasis on the jury's assessment and	27

evaluation of the evidence~ and I will refer to some	28
passages in the judgment shortly - and that too much	29
weight was placed on the trial judge's exercise of	30
discretion, and that in the end, the conclusion was	31
reached by a subjective assessment on one feature of the	32
evidence - and I will briefly refer to the evidence	33
relating to the seminal stain on the dress - and that	34
there was not an objective assessment of the combined	35
weight of the feature which we have identified.	36

Perhaps I will refer to the feature. It is set out 37

at p.2 of our additional summary of argument, and it is 38

LT lA 4 APPLICANT ADDRESS

the combination which we rely on. The first point we 1

made is that it was the unusual nature of the alleged	2
victim's evidence, and the Court of Criminal Appeal	3
referred to that. Secondly, it was a case which	4
required a caution direction. Thirdly, there was	5
corroboration of the evidence of the applicant; and	6
fourthly, the significance of the failure to call an	7

important witness, Dr Dixon. We say that that 8

combination of circumstances was an important challenge,	9
it had to be looked at as a whole, and it was one that	10
did not bring into play the advantage, or so called	11
advantage, which the jury had in seeing and hearing the	12
witnesses.	13

BRENNAN J:  Why not? Why was it not a case where 14

the jury had a significant advantage in seeing the	15
witnesses?	16

MR BORICK:  Because in each of those instances, for 17

example, the caution which had to be given, that was one	18
of our grounds of appeal, that there should have been a	19
warning that it was dangerous to convict in the	20
circumstances of this case: Consideration of that by	21
the Court of Criminal Appeal did not, or could not	22
depend upon what the jury thought.	23

That was, at trial, a matter for the trial judge, 24

and we say when the Court of Criminal Appeal was making	25
its own independent assessment, it was for them to say	26

what sort of warning should have been given, rather than 27

saying it was for the trial judge to exercise his	28
discretion, as the Chief Justice did in his judgment.	29

BRENNAN J:  I do not understand how it is said that 30

the appellate court's view as to the caution that should	31
have been given affects the appellate court's own	32
assessment of the evidence that was given.	33

MR BORICK:  My answer to that is that if a Court of 34

Criminal Appeal is making an independent assessment,	35
then it ought to assess the case not on what the trial	36
judge thought about the evidence, and what sort of	37
caution it required, but rather, what they, the Court of	38

LT lA 5 APPLICANT ADDRESS

Appeal, thought was the nature and quality of the	1
evidence.	2

BRENNAN J:  What has the trial judge's direction to 3

the jury got to do with that? 4

MR BORICK:  We say so far as the independent 5

assessment is concerned, it should have been put to one	6
side, rather than, as his Honour said, that it was	7
simply a matter for the trial judge to make his own mind	8

up. That was at p.227 of the transcript. 9

BRENNAN J:  Are you saying that the Court of 10

Criminal Appeal did not make its own assessment? 11

MR BORICK:	Yes.	12
BRENNAN J:	Why do you say that?	13
MR BORICK:	I ask you to turn to p.229 of the	14

transcript, and at the bottom of the page his Honour	15
says:	16
'In the end, it is necessary for this court to make an	17

independent assessment of this evidence in order to	·	18
determine whether the verdict was a safe verdict.'	19
That is immediately followed by the sentence:	20
'It depended very much on the jury's assessment of the	21
witnesses.'	22

Prior to saying that, his Honour the Chief Justice 23

had dealt with the various grounds of appeal, the	24
question of the caution, the failure to call the	25
witnesses, and the other matters that we had raised in	26
the grounds of appeal, so that here, right at the end of	27

the judgment, the court turns to the task of the	28
independent assessment, which it would perceive in this	29
case it had to have.	30

It followed that immediately by saying it depended 31

upon the jury's assessment, and in our submission, that	32
was the incorrect approach, and a very similar approach	33
to what was adopted in the case of Palmer, by Vincent	34

and Gray JJ. I refer your Honours to Palmer at p.2, 35

where the court said:	36
'In the Court of Criminal Appeal, Vincent J, with whom	3 7
Gray J agreed, expressed some difficulty in the	38

LT lA 6 APPLICANT ADDRESS

application of Morris, and made no reference to Mrs	1
Palmer's position as an essential witness, who,	2
protected by an indemnity, was a self-confessed liar,	3

prepared to lie on oath. Nor did Vincent J attempt any 4

evaluation of the evidence, other than that of Mrs	5
Palmer, to see whether it assisted in any way in	6
determining whether the jury could reasonably have acted	7
on her evidence.'	8
Vincent J concluded:	9
'I can see no justification for any interference with	10
the jury's findings in the present matter, which are	11
clearly dependent upon its assessment of the	12
credibility of Mrs Palmer, and consider the application	13
for special leave to appeal against conviction should	14
be dismissed.'	15
We rely upon that.	16

DAWSON J:  How can you? This was a case where 17

there was evidence which suffered from some inherent	·	18
defect, it was apparent on the face of it, which	19
required evaluation.	Where is there an inherent defect	20

in any of the evidence here? 21

MR BORICK:  The point about this case is that there 22

obviously was evidence on which a jury could have	23
convicted, but when one is applying the Davies & Cody	24
type test, then it is not a matter of looking for	25
weaknesses in the case as such, it is a matter of	26
looking to see whether there are aspects of the case,	27

and the particular way in which I express the view, the	28
manner at which the jury arrived at their verdict was	29
important; for example, if the court had looked at the	30
issue of the failure to call Dr Dixon, which we said was	31
an important matter.	32

DAWSON J:	Something was made of that at the trial?	33
MR BORICK:	Yes.	34

DAWSON J:  The jury took that into account. Is 35

there any reason why, if the jury is so minded, they	36
should not have accepted the evidence of the	37
complainant?	38

LT lA	7	APPLICANT ADDRESS
MR BORICK:	No.	1
DAWSON J:	She was not mentally defective?	2
MR BORICK:	No.	3
DAWSON J:	She was not a pathological liar?	4
MR BORICK:	No, none of those things.	5
DAWSON J:	There are no defects that would require	6

the evidence to be looked at in a different light. 7

MR BORICK:  We are focusing, in this application for 8

special leave, on the question of the independent	9
assessment, the type of assessment which should have	10
been made by a Court of Criminal Appeal.	11

In Palmer, itself, Vincent and Gray JJ said there 12

were difficulties in applying Morris, and Hunt CJ in	13
Clough has, again, picked up that problem - he called it	14
confusion - arising out of the expression 'unsafe and	15
unsatisfactory'.	16

The essence of our argument is that if you go down 17

the line of Morris, and you are looking to see whether·	18
the jury ought not to have convicted, in which case you	19
are looking at the evidence, its cogency, its weight,	20
its reliability, all those natters, the court decides	21
that the jury ought not to have convicted, that leads to	22

an acquittal. If you go the line of Davies & Cody, and 23

you are looking to see whether or not the verdict was	24
safe, that leads to a retrial, and they are two	25
fundamentally different results.	26

DAWSON J:  Morris was a case of identification. 27

There was an inherent defect in the evidence, and the	28
nature of the identification, something that an appeal	29
court could see on the face of it, and in the case of	30
Palmer, the principal witness was a self-confessed liar,	31
something the appeal courts could see on the face of it.	32
In this case, you have a witness whom the jury could	33
accept, and apparently did accept.	34

MR BORICK:  But it was in the context of a trial 35

where we say there should have been a much stronger	36
warning given than what was given, and that was because	37
there was no corroboration of the victim's version.	38

LT lA 8 APPLICANT ADDRESS

DAWSON J:  There are two views about that. The 1

Chief Justice says there was corroboration, or evidence	2
capable of amounting to it, and of course, a caution was	3
given, no doubt not as strong as you would desire,	4
nevertheless, one which the trial judge considered	5
sufficient for the circumstances.	6

MR BORICK:  May I briefly refer to the question of 7

the evidence which the Chief Justice said could amount	8
to corroboration? p.227, his Honour referred to the	9

seminal stains on the dress.	At lines 15 to 22, he	10
said:	11

'I think the first comment that might be made about the	12
submission, is that it is by no means clear to me that	13
the evidence of Ms Green should be regarded as	14

uncorroborated. The presence of seminal stains on the 15

dress might be thought to have provided substantial	16
support for her story.'	17
There his Honour is saying the seminal stain on the· dress is probative, and substantial evidence.	18

If your 19

Honours then turn to p.230, in this passage of the 20

judgment he is making the independent assessment. In 21

making that, he only really refers to the seminal stains	22
on the dress, and he says, starting at line 44:	23
'It seems to me, that as seminal fluid was present on	24
the thighs of the alleged victim, and as she cleaned	25
those up with the use of tissues, seminal stains could	26
very easily have been transferred by the hand or by the	27

tissues from one part of the dress to the other, or from 28

the thighs or body to some part of the dress. I do not 29

think the location of the seminal stains on the dress	30
really possess any probative significance.'	31

It is our submission that what his Honour said was 32

evidence capable of being corroborative, and having	33
probative force, in one breath he says it has that, in	34
the other breath, when he is looking at the case from	35
the point of view of making an independent assessment,	36

he says it has no·probative value. That is one of the 37

reasons why, in our submission, the court, when it 38

LT lA 9 APPLICANT ADDRESS

turned its attention to the issue of independent	1
assessment, it did not make it.	2

DAWSON J:  I think he is only saying that the 3

location was not probative, not the presence. 4

MR BORICK:  Presence and location were totally bound 5

together in this instance, and his Honour simply pushed	6
that evidence, at that point of time, in the independent	7
assessment, to one side.	8

May I, in the time available, take your Honours to a 9

passage in Morris, pp.463 to 466. I ask your Honours to 10

consider the discussion there, starting at p.463, where	11
the Chief Justice was referring to the failure of the	12
court of criminal Appeal to carry out the independent	13
assessment, and then in Chidiac, at p.443, again, his	14
Honour the Chief Justice said:	15
'The critical question is whether in the present case	16
the Court of Criminal Appeal discharges responsibility	17
to exercise the jurisdiction.'	· - 18

He then referred to a passage from the judgment, 19

which can be found at pp.441 and 442 of the judgment of	20
this court, and he said:	21
'I would be inclined to the view that their honours	22
proceeded according to an overly narrow view of their	23

jurisdiction. They seem to·be saying that the 24

fundamental issues raise questions of credibility on	25
which the jury had the benefit of instructions which	26
were adequate and favourable to the applicants.'	27

Then he went on to say how it was necessary to bear 28

in mind that it was conceded to the Court of Criminal	29
Appeal that there was corroborating evidence, and	30
further down the page, that in turn would account for	31
the comparative summary treatment which the challenge	32
received.	33

It is our submission that this challenge, which was 34

substantial, did receive very summary treatment,	35
particularly on the issue of corroboration, and that	36
relying upon what·his Honour the Chief Justice said in	37
Chidiac, we submit that the Court of Criminal Appeal did	38

LT lA 10 APPLICANT ADDRESS

take, first of all, far too narrow a view of its	1
jurisdiction, in exactly the same way referred to by his	2
Honour, and in addition, we rely upon the Davies & Cody	3
type argument.	4

BRENNAN J:  We do not need to hear you Mr Doyle. 5

This application for special leave is based on an 6

alleged failure by the Court of Criminal Appeal to	7
undertake an independent assessment of the evidence in	8
determining whether the verdict was unsafe and	9

unsatisfactory.	The judgment of the Court of Appeal	10
said:	11

'In the end, it is necessary for this court to make an	12
independent assessment of this evidence in order to	13

determine whether the verdict was a safe verdict. It 14

depended very much upon the jury's assessment of the	15
witnesses.'	16

The applicant submits that that approach was not 17

open because of four factors:  One, the unusual nature. 18

of the alleged victim's evidence; two, it was a case	19
which required a caution direction; three, there was	20
corroboration of the evidence of the applicant; four,	21
the significance of the failure to call Dr Dixon.	22

The circumstances of the case do not show that there 23

was any error in the approach of the Court of Criminal	24
Appeal.	25

As to the argument that the trial judge should have 26

given a further warning to the jury cautioning them 27

against too ready an acceptance of the evidence of the	28
prosecutrix, we agree with the Court of Criminal Appeal	29
that the trial judge did not fall into error by reason	30

of inadequacy of the warning that he gave.	Accordingly,	31
special leave will be refused.	32
33
34
35
36 37