Roberts v The Queen A42/1994 [1995] HCATrans 288 (23 August 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A42 of 1994

B e t w e e n -

RHYS AINSLIE ROBERTS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 2.14 PM

Copyright in the High Court of Australia

MR M.DAVID, QC: If the Court pleases, I appear with MR A. KERIN, for the applicant. (instructed by Johnston Withers)

MR S.A. MILLSTEED: May it please the Court, I appear with my learned friend MS. S. McDONALD, for the respondent. (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN CJ: Yes, Mr David?

MR DAVID: If the Court pleases, there are two points upon which special leave is sought. If I could come to the first point which is, indeed, the second point on my summary of argument. I am sorry for reversing the order. The first point, if the Court pleases, is whether a direction about lies which is required by this Court according to Edwards v The Queen in a purely circumstantial case, which this was, need not be given because the prosecutor talks generally about lies in presenting the case rather than specifying them.

In this case, which was a purely circumstantial case concerning attempted false pretence, and as the papers show, namely the applicant setting up a robbery and claiming valuable paintings which he says were stolen from an insurance company, the case was led purely as a circumstantial case and there were a number of specific lies alleged and relied upon by the Crown as probative of a consciousness of guilt.

There was also, as the case unfolded, a great number of lies contained in a very long videoed record of interview in which those lies were not specified but were commented on. His demeanour was commented on and the fact that he may not be telling the truth in that record of interview was commented on. The trial judge gave a direction as to lies and that is at page 49 of the application book but in that direction as to lies he did not follow many of the factors that Edwards' Case says he should point out to the jury. Most importantly, the judge did not tell the jury that they had to be sure that those lies related to material factors and, of course, during the course of that charge at page 49 he did not tell the jury exactly what each lie was and did not enunciate it as Edwards' Case says.

TOOHEY J: What is the cause of complaint, Mr David? Is it the failure on the part of the trial judge to take seriatim all those matters that were said to have been lies and comment on them?

MR DAVID: Yes, and the point of principle being that there may be a way of overcoming Edwards or, in fact, not adhering to Edwards if the Crown merely put lies as a lump, if I could use the vernacular, rather than enunciating them. In my submission, the point of principle which should be looked at is does that overcome the need for an Edwards direction. Instead of, in a record of interview, going through four, five, six, seven specific lies and doing what Edwards says just saying, "Look, there are lies there. They have come out during the course of the trial. There is no need for an Edwards direction".

TOOHEY J: But what is the starting point? I mean who did, in this particular case, identify individual matters or matters in general as constituting lies?

MR DAVID: The prosecutor.

TOOHEY J: And you say he did that in general terms?

MR DAVID: Well, what he did, if the Court pleases, is this; he specified a number of specific lies, he did that, but then he commented on the record of interview generally comparing it with his evidence and in doing that made a comment which I will go to, so I do not paraphrase him wrongly, which was of the opinion that, really, was he evading the truth in the way he has conducted this record of interview.

TOOHEY J: But, are you saying that in those circumstances it was incumbent on the trial judge to pick up and try to identify those matters where there was some inconsistency between the record of interview and the evidence and comment on each of those?

MR DAVID: Yes, and the reason I say that, with respect, in this particular case especially is that having given this direction as to lies which is not complete, he has alerted the jury that lies can be used in a certain way. Having done that, then the jury are left with this general comment about a record of interview so that they can go and pick and choose it themselves using in the way that he says generally, namely as a consciousness of guilt, without the proper direction and without the proper instruction and that is the basis upon which special leave is sought as far as this case is concerned as far as that second point is concerned.

TOOHEY J: What direction, if any, was sought in respect of that aspect of the matter?

MR DAVID: No, there was none, your Honour, but what happened was at the end of the Crown case the defence said that because the defence case had not been put properly that that would require a whole restructuring of the judge's charge to the jury and, of course, that was not going to be done, and also that the decision was made not to raise that at that stage of the case because, of course, if a proper Edwards direction was given then that would be detrimental to the defence, if it was not done in the proper sequence that it should have been during the course. I mean, the jury has gone out and then the judge is going to bring them back and go through every lie in the case. It could only be detrimental to the defence.

TOOHEY J: One might think it might be detrimental to the defence to take the course suggested, of taking each inconsistency between the video and the accused's evidence, might only serve to highlight the matter adversely to the accused.

MR DAVID: But, in my submission, not as bad as if in this case, by ignoring the full input of Edwards, he tells them it can be used for a consciousness of guilt then leaves it to them. In my submission, really, with respect, nothing could be worse than that and that is what happened in this case.

If the Court pleases, my submission is that the special point concerns itself, which is the Court of Criminal Appeal of the majority which is in the judgment of Justice Perry, is of the view that if you leave it generally, that in many instances means you can overcome the necessity for Edwards direction.

If the Court pleases, the first point that is in the summary of argument that I have provided, which is my second point for special leave here, is a short point which concerns a very short part of the prosecutor's address to the jury, which is at page 27 of the application book, in that in a finely balanced circumstantial case talking about a very important piece of evidence the prosecutor said:

Personally, ladies and gentlemen of the jury, and my opinions don't matter, personally I suggest to you that I think that the pliers evidence and the painting evidence, Ulamini and the Stolen Canoe, is devastating evidence. But, ladies and gentlemen, those matters are ultimately a matter for you -

and then goes on. At the end of his address the defence asked for a mistrial on the basis of what he said there, namely giving a personal opinion as to what he thought the state of evidence was. Where that, in my submission, may become a special leave point other than a matter that can be sorted by the Court of Criminal Appeal and not worthy of the attention of this Court is that the Court of Criminal Appeal seemed to downplay the importance of the way a case is presented by counsel, especially in the area of giving personal opinions.

TOOHEY J: That does not seem to quite the same point as the one you identified a moment ago which I took to be the conduct of the prosecutor in describing the accused as a liar.

MR DAVID: No, they are two different points, if your Honour pleases. I am sorry, I have gone on to my second point. The first point was the question of lies - - -

TOOHEY J: Yes, I know, I realise that but I thought, perhaps wrongly, that there was a complaint about the prosecutor's description or reference to the accused as a liar, not the question of whether there were lies.

MR DAVID: No, there is no complaint about that but what the complaint is he, having done that, it was then incumbent on the trial judge then to do what Edwards says he should have done.

TOOHEY J: Right.

MR DAVID: He having characterised those matters as lies because he is a liar, then a proper Edwards direction should have been given. This is a separate point about a separate piece of evidence and about a separate matter whereby the prosecutor gives a personal opinion and, in my submission, not just a slip of the tongue, a fairly solid personal opinion about a vital piece of evidence.

BRENNAN CJ: It is very unfortunate, as it is oftentimes by counsel nowadays who volunteer their own opinion instead of making submissions.

MR DAVID: I adopt that, if your Honour pleases. The learned majority - and this, in my submission, is where it might become a matter of importance as distinct just a matter of fact which the Court of Criminal Appeal can sort out, seems to downplay that concern that your Honour the Chief Justice has just mentioned. His Honour Justice Perry said for the majority at page 111:

But the argument adduced by the appellant with respect to this aspect of the matter, in my opinion, both underestimates the ability of the jury to perceive that something expressed as a personal opinion has no greater force than something advanced in a more detached fashion, and fails to recognise that a tendency to identify submissions with the author of them is apparent in any event, to a greater or lesser degree, in all cases.

A florid and forceful presentation of either the prosecution or defence case, during which counsel pay lip service to the obligation to exhibit an air or detachment, may well lead to the jury identifying the counsel concerned personally with his or her submissions. In this case, the remarks in question, taken in context, are unlikely to have had the slightest effect upon the approach of the jury to their task.

If the Court pleases, what his Honour there is saying is that the rules do not matter. It is really open slather - - -

BRENNAN CJ: No, he is not saying that at all. He is saying that it does not produce a miscarriage of justice. That is a different thing.

MR DAVID: And might I take him to task, if the Court pleases, in this aspect: a proper forceful presentation is one thing, but giving a personal opinion, in my submission, puts another whole factor into play before the jury because, of course, the credibility of counsel then becomes vital.

TOOHEY J: One can readily criticise the conduct of counsel in putting the matter that way but so be it. The next step though, and the one that you have to take, is that there is a risk that thereby a miscarriage of justice occurred and that means taking a particular sentence or two out of an address by the prosecutor. What was the sequence here? Who addressed first?

MR DAVID: He did.

TOOHEY J: The defence has the right to address next. The trial judge has the opportunity of either on his or her own initiative, or if asked, to say something about that matter. So there is some scope for remedying any possible risk of miscarriage of justice if it could arise from something as relatively isolated as that.

MR DAVID: Yes, thank you, your Honour. The way it was done in this case, if I could conclude my submissions on this point, was this: the judge quite properly invited counsel whether he wanted him, that is the judge, to say something about how it was done by the prosecutor. That was declined on the basis that there was no remedy short of a mistrial on the basis that whether it was right or according to the rules of advocacy or not, the jury was still appraised with the fact that it was this person's personal opinion and, indeed, the more it was contrary to the rules of advocacy and, in fact, it could well be argued that it was stronger than the jury might have thought that opinion was, so that there could really be no remedy.

TOOHEY J: Or the more over the top they thought the prosecutor was, it could have worked the other way.

MR DAVID: It may, but there was a grave risk of a miscarriage of justice, in my submission, by not adhering to the rules of advocacy and an unfair advantage to the prosecution and further, if the Court pleases, the isolation of that comment can be answered by the fact that this was about a vital piece of evidence, in fact, one of the most important pieces of evidence in the case.

BRENNAN CJ: I do not know, Mr David. I must say that if I had been defence counsel and the prosecutor had said that, I would have thought he had given me the head on a plate. It would have been one of the most magnificent openings that a defence counsel following him could have asked for.

MR DAVID: Yes, well, maybe times have changed, your Honour, but in my submission, I mean, it is a matter of tactics and a matter of judgment, but to have highlighted the prosecutor's opinion may well have reinforced it. Anyway, that was just a matter of judgment, if the Court pleases.

BRENNAN CJ: We need not trouble you, Mr Millsteed.

In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 this Court prescribed the directions to be given in a case in which the prosecution relies upon the telling of lies by an accused as proof of guilt. The application of that case to the particular circumstances of the case would not ordinarily be a sufficient ground for the granting of special leave unless it appeared that the decision in Edwards is materially misunderstood. There is nothing in this case which warrants a grant of special leave on that ground.

The objection taken to the prosecutor's address was a matter for consideration by the trial judge or the Court of Criminal Appeal. The assessment of the prosecutor's conduct, though the conduct was improper, and the steps which ought to have been taken to counter the effect of that conduct are not questions which warrant a grant of special leave, especially when the Court of Criminal Appeal is satisfied that that conduct would not have produced a miscarriage of justice. Accordingly, special leave is refused.

AT 2.33 PM THE MATTER WAS CONCLUDED.