Muca v The Queen A48/1996 [1997] HCATrans 13 (3 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A48 of 1996

B e t w e e n -

TOFIK MUCA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 FEBRUARY 1997, AT 12.06 PM

Copyright in the High Court of Australia

MR D.H. PEEK: May it please the Court, I appear for the applicant. (instructed by Armour & Allen)

MS W.J. ABRAHAM: If the Court pleases, I appear with my learned friend, MR P.F. MUSCAT, for the respondent. (instructed by the Director of Public Prosecutions (South Australia))

MR PEEK: If it please the Court, if I can go directly to page 2, the first special leave question, referring to the outline of argument, which is as to the nature and extent of the obligation of a trial judge to put the defence case and particularly the appropriate way in which the discharge of that function is to be reviewed by a Court of Criminal Appeal. In a nutshell, the applicant's submission is that the legal obligation to put the defence case requires a trial judge to instruct not only what the defence case is but also as to important deficiencies in the Crown case, particularly where, as here, it is a case of oath against oath, and that a proper appreciation by the jury as to the true deficiencies and the cumulative effect thereof of the complainant's evidence may have a real bearing on the acceptance of the defence evidence or it is a reasonable possibility that it may be true.

That general approach, in my submission, was recognised in cases such as Wilkes and Briant and Schmahl, and of course I do not read the extract which the Court has read from Wilkes and Briant but it is a very analogous case and encapsulates the principles for which we contend. In the present case, as the Court is aware, there is a very substantial dissent by Justice Olsson in which Justice Olsson basically adopts the principles for which the applicant contends, but the majority appear to have taken a very different approach. If I can take the Court to the majority judgment which appears in the application book commencing at page 40 but in fact the consideration starts at page 42, if I can take the Court to that page. A little under line 15 the court refers to counsel's submissions to it, notes that I had not been counsel at the trial but goes on to say:

but a most competent, experienced counsel was and I am quite sure she would have put to the jury everything which needed appropriately to be put.

It is my submission that that is a fundamental mistake in approach in that it really is an abnegation of the court's function. One cannot say, "Well, we understand this is an experienced counsel. She would have put everything that's needed". The obligation on a trial judge is himself with the court's authority to put what is required to be put so as to make sure that a miscarriage does not take place. The Court of Appeal goes on on that page and then on the following - - -

BRENNAN CJ: Where did the risk of miscarriage arise having regard to the terms of the trial judge's direction?

MR PEEK: If it please the Court, the matters that needed to be explained to the jury are collected in the judgment of Justice Olsson and there really is a plethora of matters that his Honour refers to. It is my submission that many of those matters would not necessarily - - -

BRENNAN CJ: What do you say is the strongest matter that should have been referred to that was not that the jury might not have understood?

MR PEEK: Well, for example, the complainant's recognition that the applicant did in fact say, "Don't worry, they'll leave soon," when a car carrying persons they knew arrived on the scene at the time at which it is said that count 1 was being committed. Now, as Justice Olsson says, it is a striking matter that, for example, that was not touched upon in either counsels' address nor mentioned by the trial judge, and yet it does give rise to a very real line of reasoning which the jury had to be alive to, namely, that it is very unlikely that the applicant would have said such things if in fact a rape was occurring. It was a real matter that had to be - - -

KIRBY J: Did the trial judge refer specifically to the complainant's statement that she only really realised that she had been raped when she was having a shower at home? Did he make any reference to that? Which seems to me to be a rather telling point in your favour.

MR PEEK: That is right. That is another important point.

KIRBY J: That is at the other end of the spectrum, and in between there is the fact that she made no complaint to the bouncers, although she had some social relationship with one of them, and that she was extremely angry but angry because she had been left out in the cold without being allowed in because she could not produce identification. It is a very strong defence case.

MR PEEK That is right. That whole area - - -

KIRBY J: But the question is whether or not there is enough here to warrant the intervention of this Court. It has been through the Court of Criminal Appeal and, by majority, they thought not.

MR PEEK: It has, of course, been through the Court of Criminal Appeal, but it is my respectful submission that the judgment of the majority, in fact, does not address a number of the important grounds of appeal before that court. Of course, I make that submission at the top of page 4 that ground 1.1 as to the question of inconsistencies simply is not addressed by the Court of Criminal Appeal because what is being said is recognised by Justice Olsson is that you need a direction, not just that here is an inconsistency, make of it what you will, but, rather, an inconsistency may well go to the question of credibility and, very importantly, reliability of the complainant not just on that particular matter but overall in the case.

Now, this is a case which goes way beyond questions of credibility but it goes into questions of reliability because, as Justice Kirby just mentioned, the question of thinking about it later in the shower , did it happen, did it not happen, and a belated assertion later that it constituted rape, does not necessarily go to a question of credibility but to the much more difficult area of reliability. That then comes into an area much like identification evidence, where if a person really believes what she is asserting because of this process of ex post facto rationalisation, then that is a person very difficult to assess by a jury. In those circumstances, you need the most careful directions by a trial judge.

The Court of Appeal, as I say, really did not grapple with those matters at all, and at page 43, continuing on in Justice Millhouse's judgment, his Honour at line 25 refers to my submission to that court that:

There was considerable danger in this case that a lay jury just, if not properly instructed, could easily fail to appreciate -

et cetera. At page 44, his Honour goes on to say:

The learned trial judge - I have quoted the passage - told the jury, in unexceptionable language that they were the arbiters of the facts. We often say to juries that we judges are in no better position than they are to assess the facts. And so they are.

To talk about "a lay jury" - all juries are made up of "laymen" anyway - needing particular direction on fact, which they have heard and seen in evidence, is an insult to the men and women who are jurors.

We would take strong exception with that approach in the sense that by using the term "layman", it is not used in a pejorative term, it simply means non-lawyers and that the law has a certain experience which is, or may be, wider in particular areas and therefore that is the basis for requiring certain directions to a jury against which one can, at the end of the day, assess the opaque verdict of guilty.

BRENNAN CJ: I would have thought that the reason why particular directions should be given was because the judge could see what a jury might not see, and that is a risk of relying on particular evidence or coming to an adverse conclusion. But if the jury can see it as clearly as a judge can see it, why then should the judge simply repeat his or her views about the quality of a particular piece of evidence?

MR PEEK: The problem is, your Honour, that, of course, one does not know if the jury can see it or not, and therefore, as it were, one has to - - -

BRENNAN CJ: It depends on the nature of the evidence. It is for t

hat reason that it has been customary to give a particular direction with respect to, for example, accomplices. It used to be the view that it was desirable for reasons which courts of earlier times thought appropriate in relation to corroboration of sexual charges. Now, by statute, if not otherwise, that direction is not required. Are you saying that in this case such a direction should have been given?

MR PEEK: Most certainly in regard to a number of the areas canvassed - for example, distress evidence. The problem about distress evidence is that hitherto, under a corroboration regime, there inevitably was a direction, "Look, there is evidence of distress here", and then a direction as to whether in the particular case it could or could not be corroboration, and melded into that, in effect a warning or at least a direction, as to the deficiencies of distress evidence with which jurors may not - I say "may not" - necessarily be familiar or aware. Of course, in South Australia, as in the other jurisdictions, it is no longer required by law for a trial judge to warn a jury that it is unsafe to convict on the uncorroborated evidence. But that has, perhaps, an unintended effect - certainly an effect - that no longer do you therefore get discussions by the trial judge as to particular items that might be considered by the jury under the corroboration regime, and of course there are very strong - - -

DAWSON J: Can you tell me, Mr Peek, do judges regard that particular provision as precluding them from giving a direction as to corroboration?

MR PEEK: No, I would say not, your Honour, but it is a question of perhaps not using the strict formulae of previous years and all that that necessarily required, but it would not preclude them from giving directions. But the problem is that if they choose - - -

DAWSON J: My question was, do they commonly give the direction notwithstanding the statutory provision in terms of saying that the jury in this case ought to look for some independent evidence which implicates the accused?

MR PEEK: No, I would say they do not commonly do that. They take the statute as they find it and take the view that, normally, they would not give such a direction. But apropos distress, what I say is that those strictures under the previous regime - and I am simply referring here to what appears on my outline at 7 and 8 and I will not read those of course - there are strong statements there and your Honours can perhaps look at that portion underlined from the judgment of the Court of Appeal in Tom Wilson at the top of 8:

We regard it as of considerable importance that the type of warning adverted to by Lord Parker CJ in Knight (supra) is constantly borne in mind when such cases as the present are before the Courts and that a Trial Judge cannot be too zealous in heeding that warning.

That is to say to give directions about distress. Justice Olsson dealt with this aspect and that was one reason for his Honour - - -

BRENNAN CJ: Taking this case, Mr Peek, there was distress manifested by the prosecutrix outside the club, outside Rio's, and it was quite clear that part of her distress or anger was due to the fact that she was not being allowed in.

R PEEK: Well, your Honour, that is the defence contention. But the prosecution would have it another way, and therein lies the necessity to put to the jury the danger of that sort of evidence.

BRENNAN CJ: But is that not for the jury plainly for their consideration? They do not need to be alerted to the fact that on one view of this she was upset because she had just been raped. On another view, she was mad because she was not allowed into the nightclub. That is no mystery, as it were. Here you have got a bouncer aged 28, you have got a girl aged 18, you have got her being cold, outside in the night, the fellow wanting his jacket back - all those factual situations must have been manifest to the jury.

MR PEEK: Your Honour, it is my submission that under the previous corroboration system, when a jury was looking around for something that might corroborate the evidence of the complainant, there was the possibility that they might fasten upon distress and, in that regard, trial judges were bound to give them warnings about that. Now, what I am saying is that even absent the corroboration warning regime, juries will still be looking around for supportive evidence, and the same danger, and the same requirement as to directions in that regard still remain and, indeed, may even be the greater.

This was a case which I put in the cumulative, rather than, of course, by referring to any one particular aspect. The aspect of late complaint and ex post facto reconstruction and rationalisation is very important and in my - - -

KIRBY J: Remind me if the majority in the Court of Criminal Appeal specifically rejected the expression of the judge's duty in the Victorian case of Wilkes and Briant. Did they expressly say, "Well, that is not the law in South Australia."?

MR PEEK: They did not. I mean, basically the treatment appears at page 44 where their Honours basically lay stress on the question that these are factual matters and therefore are not to be entered into in this regard.

KIRBY J: There is, of course, an argument that as a matter of principle we should be reducing, rather than increasing the judicial intervention in matters of fact. United States lawyers are always shocked at the extent to which judges of our tradition give directions on facts because, as you know, in the United States they leave it entirely to the jury.

MR PEEK: I appreciate that and I am aware of that.

KIRBY J: So there is a question of principle as to whether one should be adopting principles that require more elaboration by judges of facts, the argument being that that is an invasion of the jury's realm.

MR PEEK: What I am submitting, your Honour, is that I accept that there is a spectrum, of course, but that in order to find where a particular case lays within that spectrum it does behove the Court of Appeal to consider carefully both the specific matters and the cumulative effect of them to determine, and then compare what the trial judge has in fact said in a particular case, and that that process must be gone through with whatever result it leads to. But what the court cannot say in this stage of development is, "Forget all about those matters because they are purely matters of fact". That is basically what the Court of Appeal here has done, and by doing it has in fact rejected the approach in Schmahl and Wilkes and Briant, although I agree they do not specifically refer to those cases. I suppose that is one aspect of my complaint about the majority judgment, that it is very short indeed in all regards.

What we submit is that before one gets to a test which is analogous to or along the lines of the case of M on the unsafe ground, there is a logically prior test to be satisfied, and that is objectively speaking and looking at the summing up, does it properly put the defence case? That, in my submission, is a matter of real principle and importance certainly for South Australia because, if this judgment is correct, then it really, it would seem on the majority view, reduces that obligation to very little at all. We submit that the correct principles as are set out at pages 4 to 5 of my outline, in Pemble v The Queen, Crnjanin and, indeed, Reg v B and D ,and that down the bottom of that page, where the prosecution put and the judge repeats without disapproval the rhetorical question, "Would this naive country girl be likely to be guilty of an attempt to destroy a man?", that is to say to lie. "Why would she lie?"

That brings in real dangers for an accused person because a lay jury - and I stay with that word, with respect to the Court of Criminal Appeal - may say, "Well, there doesn't appear to be any evidence as to why she would lie", and they start from that standpoint. But of course it is not a question of whether there is no evidence of that. That really is a substantial reversal of the onus of proof. That case of Reg v E constitutes a substantial examination of that proposition for which I contend. If it please the Court.

BRENNAN CJ: Yes, thank you, Mr Peek. Yes, Ms Abraham.

MS ABRAHAM: Your Honours, in my submission it goes without saying that the defence case must adequately be put to the jury. But what is adequate in the circumstances must be in the discretion of the trial judge. It must depend on the course of the trial, the conduct of it, the matters put by counsel. So, in my submission, it is not necessary to put every argument - - -

KIRBY J: Subject always to the review by the Court of Criminal Appeal of whether or not it was adequate and just.

MS ABRAHAM: Certainly. I accept that. But, of course, the trial judge does have an advantage. I mean, in this particular case, for example, we have a situation where there is a complaint that there was no direction concerning distress. Well, there was no request for a direction concerning distress at the end of the trial. There had obviously been no need, in the mind of the trial judge, to give such a direction and, in my submission, that is clearly so, because in this case the distress, and the explanations for it, would have been obvious. I mean, on the one hand there is the situation it is distress because the girl was upset because of the rape. But, on the other hand, it might well have been because she was angry at not getting into the nightclub.

KIRBY J: It seems unlikely that it was because of the sexual offence because she did not even know she had been raped until she got home and had the long shower.

MS ABRAHAM: With respect, that is not how her answers read in terms of that. What she is saying in those answers is that, "I knew at the time I was raped, but when I got home, I thought about it. Did I bring it on myself? Did I do something? Didn't I say `no' enough?" So, in my submission, that is not quite the interpretation that might be put on it. The distress occurred outside the nightclub and, of course, there was also evidence that she was crying, and back at the house indeed she was heard to be crying while she was having a shower and later into the night. But my point about distress, in my submission, is that it is an example of a fact in this particular case where the conduct of the trial and the nature of the evidence is obviously apparent to the trial judge and counsel.

It was not a matter that was seen as necessary requiring a specific direction, and obviously so, in my submission, in this case because of the different and obvious interpretations. It was self-evident. So, in my submission, one does need to look very carefully at the conduct of the case.

KIRBY J: But it was a case where there were accumulation of, really, weaknesses in the Crown case; the failure to complain to the persons who pulled up; the consistent story that the accused said, "Don't worry, they'll leave soon", that was denied at the first trial but not at this; the failure to complain to the bouncers even though she had had a social relationship with one of them; the fact that when a girlfriend asked what was wrong, she did not refer in the slightest to the sexual event but that she could not get let into the disco; and then the long shower and the revelation to her own mind in a state where she was extremely angry at being kept out because she did not have an identification pass, that she had then come to the conclusion, belatedly, that she had been raped.

Now, the question is whether, in that circumstance, as it were, to prevent the Court of Criminal Appeal having to do it ex post, it is not the duty of the trial judge to make it very clear and bring her office to bear that the jury fully appreciates this cumulation of weaknesses in the Crown case.

MS ABRAHAM: I agree in this particular case there were a number of matters that were put in argument by defence, the sorts of matters that your Honour Justice Kirby has just mentioned but, in my submission, it does not follow from that that the trial judge must go through each and every one of those matters. What the trial judge did in this instance was list off the inconsistencies, for example, that the defence counsel said existed in the complainant's evidence and a portion of the complainant's evidence was read and arguments concerning that were put and, indeed, a warning was given concerning the evidence of the complainant that they were to scrutinise it and scrutinise it carefully in light of the inconsistencies.

So, in my submission, although this might well be a case where there are some arguments to be put on behalf of the defence, that does not mean that each and every one of those arguments need be put. One needs to look at what the trial judge did and determine whether that was adequate. In my submission, what the Court of Appeal did in this instance was that.

It looked at what the trial judge did and in the circumstances of this particular trial that was considered adequate, enough to put the defence case properly to the jury. There was nothing, apart from that, in my submission, that one needed to put to the jury. No further directions were asked for save and accept the question of inconsistent statements, and the learned trial judge acceded to that request and reminded the jury about them in the context of a warning to the jury. So, in my submission, one must approach the matter in that way and, indeed, that is how the Court of Appeal approached it.

That Justice Olsson has come to a different conclusion, in my submission, does not mean that there is a difference in principle between the two judgments. What it does mean is simply that the majority and the minority have assessed the evidence differently and assessed the extent of the directions that were given, but it does not necessarily follow.

KIRBY J: It is not the evidence, it is the approach of the primary judge. It is not the evidence, it is the approach of the trial judge.

MS ABRAHAM: Yes, sorry. So, in my submission, there is no error in the approach of the majority of the Court of Appeal; that the minority considered further matters ought to have been put does not raise a matter of principle. In my submission, the matters that Justice Olsson refers to are, indeed, matters which were clearly factual matters, a number of which were put in the course of the summing up when dealing with the defence argument, and they were matters that no directions was asked for, for example, the distress and the late complaint. The reason for that is because, in my submission, they were self-evident.

KIRBY J: What was the sentence imposed upon the applicant following his conviction? There is no application in that regard.

MS ABRAHAM: Four and a half years with a two year non parole.

KIRBY J: Yes, thank you.

MS ABRAHAM: In my submission, my friend's argument concerning distress and late complaint and that some direction ought now be given because there is no requirement to give a corroboration warning, in my submission, is ill-founded. True it is, there may well be cases that such directions ought to be given, but they must surely depend on the circumstances of the case and this was one of those cases that it was not necessary that directions in that regard be given.

DAWSON J: Why do you say that, Ms Abraham? It seems to me this is a case where it could appropriately have been given, simply to say to the jury, "Where you are faced with a conflict of evidence on the part of the accused and on the part of the complainant, you may find it helpful to look for some independent evidence which implicates the accused in the offence."

MS ABRAHAM: Some judges may well have given that direction, your Honour, but, in my submission, that does not mean necessarily that one must have been given in this case in order that the jury be able to - - -

DAWSON J: Well, the statute says there is no requirement, but it seems to me that it might have been helpful in this case.

MS ABRAHAM: In this case there was a warning given to scrutinise the evidence of the complainant and highlighted the inconsistencies and gave the warning in that context.

DAWSON J: But that is only half the picture. Where a jury is faced with one story from the complainant and an entirely different story from the accused, it must be in difficulty in saying which is to believed. Now, in that situation it is helpful, is it not, to suggest one way you can resolve the dilemma is to look for some independent evidence and to tell them what sort of evidence amounts to independent evidence implicating the accused or might be regarded as such? They would have to add that you are not bound to have regard to these matters, in other words, that, even if there is no independent evidence of that kind, you may nevertheless, after scrutinising the evidence, convict, but, in other words, a direction along the lines of the old direction. It seems to me in a case like this it is an appropriate direction.

KIRBY J: Now, that was not given. That was not given in this case and, as well as that - - -

MS ABRAHAM: Not in those terms.

KIRBY J: As well as that, the cumulation was not brought to the jury's mind as effectively as the repeated authority of the Court of Criminal Appeal of Victoria appears to require of judges.

MS ABRAHAM: With respect, I disagree with that proposition because, in my submission, the tail end of the summing up by the learned trial judge was reiterating the submissions of the defence. It was going through the inconsistencies that were said to exist in the complainant's evidence and, when the jury is brought back for a redirection, they are warned about her evidence - appears at page 32 - they are told to approach it with scrutiny, and even makes a comment that there are undoubtedly inconsistencies in her evidence. So that, in my submission, is what is ringing in the jury's ears before they go out to deliberate.

It was not necessary, in my submission, to go further and tell the jury to look for independent evidence. There might well be cases where that would be appropriate but, in my submission, it is interesting to note that no such request was made, that is, to look for independent evidence, no request was made by defence counsel for such a direction.

KIRBY J: But may that not be because, as Justice Dawson's question suggests, people are misreading the statute from "that you do not have to do it" into "that you must not do it," and that is an error, and it is an important error?

MS ABRAHAM: That, in my submission, is, in effect, speculating on the mind of the trial judge and, indeed, counsel. What is apparent from the statute, and indeed Longman, is that warnings can be given in a number of cases, especially where one is required where there are certain factors about the case where the jury might not appreciate the significance of those factors without a warning being given concerning that. But, of course, the warning must be tailored to the circumstances of the case, so there is no set formula. But what, if any, warning - - -

KIRBY J: But the circumstances of this case are of at least six, possibly more, factors which individually are worrying and which cumulatively become in my estimation, at least at this stage, very worrying when one is thinking of the danger of a miscarriage.

MS ABRAHAM: In my submission, the factors were put to the jury. They were in the position to assess the credibility of both the complainant and the applicant and, indeed, the directions the learned trial judge gave, he obviously considered they adequately put the defence case and no further warning was required in this case in terms of looking for independent evidence. In my submission, this is not one of those cases where one says that inevitably such a warning ought to have been given. The matters would have been well and truly apparent. The significance of the matters, in my submission, are of the sort that it would be apparent to the jury what the arguments are and how it may or may not affect the complainant's credibility.

So, in my submission, there has been no error. Leave ought not be granted. What one is really talking about in this instance is the application of these facts to already well-established principles, namely the requirement to give the defence to the jury and the appropriate warnings that are necessary. In my submission, this case raises no new question that needs to be considered by the Court. Those are my submissions.

BRENNAN CJ: Thank you, Ms Abraham. Mr Peek.

MR PEEK: Just on the question of the extent of the required warning or directions, that of itself raises an important matter, and it is encapsulated at page 6 of my outline in relation to the Victorian Court of Criminal Appeal's judgment in Omarjee where their Honours say that the warning:

should be more than a general comment about the need to scrutinise the evidence of the witness in question. It is not sufficient that counsel has put the matters in argument which raise considerations relevant to the assessment of the credibility of the witness and that such arguments are repeated by the judge. The warning should include a reference to the matters of significance relevant to the assessment of the evidence of the witness in question.

KIRBY J: Omarjee was approved by this Court in Crofts, I think, is that correct?

MR PEEK: In Crofts, yes, your Honour, it was indeed. But Crofts, of course, was delivered after this case was argued and delivered, so that is a problem there, of course, apropos Crofts. We submit that this, too, is an important point because this particular aspect was not, of course, precisely in consideration in Crofts but Omarjee was noticed, of course, in Crofts. This is very analogist to the matter mentioned, I think, first in argument by your Honour Justice Dawson as to the type of direction, or call it warning, if you will, that should be given by a trial judge, and the real possibility that the statute in South Australia is not being properly appreciated and, as I say, contrast the position as now showing in Crofts and, of course, in Omarjee. We submit that really the administration of justice at the end of the day, and I know that is a hackneyed phrase, but in this particular case, the administration of justice does require a grant of special leave. If it please the Court.

BRENNAN CJ: Thank you, Mr Peek.

The view of a majority of the Court is as follows: The facts of this case divided the Court of Criminal Appeal but this application raises no more than the appropriate direction that should have been given on matters of fact by the trial judge. To grant special leave would be to invite this Court for itself to re-evaluate the sufficiency of the directions on questions of fact. No question of law is raised. Accordingly, by majority, special leave is refused.

AT 12.44 PM THE MATTER WAS CONCLUDED