Baira v The Queen B65/1996 [1997] HCATrans 203 (26 June 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B65 of 1996

B e t w e e n -

PETER JAMES BAIRA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 26 JUNE 1997, AT 2.18 PM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC: May it please the Court, I appear with my learned friend, MR A.J. RAFTER, for the applicant. (instructed by Legal Aid Office (Queensland))

MR M.J. BYRNE, QC: If the Court pleases, I appear with my learned friend, MRS L.J. CLARE, for the respondent. (instructed by R.N. Miller, QC, Director of Public Prosecutions)

BRENNAN CJ: Yes, Mr Glynn.

MR GLYNN: Your Honours, the point which is sought to be established is that when a trial judge gives an accomplice warning about the evidence of an accused giving evidence in his own defence, it should be coupled with a direction to the effect that the warning only applies when the jury are considering the case against the co- accused and that it does not apply when considering the accused's own case.

KIRBY J: It does appear that a mistake has occurred here. The real question is whether or not first of all there is anything more that can be said by this Court as in Webb, and secondly whether or not - effectively you are just asking us to review the decision of the Court of Criminal Appeal. It does not seem to raise any new principle.

MR GLYNN: Your Honours, the point, in my submission, is this, that in Webb certainly the point is adverted to but the Court, with respect, has not made a clear requirement of the type that I have submitted. In my submission, not only should the caution be given but it should be given at the same time as the accomplice warning, because it can be very difficult for a jury - and in fact the structure of the summing up in this case really demonstrates the difficulties that a jury and therefore the particular accused face when an accomplice warning is given that was given here with nothing associated with at the time. It can tend to, and in my submission does, undermine the effect of directions about the accused's own evidence and the fact that there are two separate trials which were given earlier by the learned trial judge.

KIRBY J: Justice Dowsett dissented in this case?

MR GLYNN: Yes, your Honour. In my submission, Justice Dowsett's appreciation of the situation is the correct one. Perhaps if I simply took the Court quickly to the passages in the summing up that appear to be relevant.

KIRBY J: How would you say that the majority reached - what was the essence of the difference between them and Justice Dowsett?

MR GLYNN: They took the view, your Honour - I think probably the essence of theirs is to be found at page 70 of the record where they say this three lines from the bottom of the page:

It would have been better if the judge had explained specifically that his warning that the evidence of Peter Baira should be treated with caution, on the ground that he was an accomplice, applied only to the subject matter with which his Honour was then dealing - - -

KIRBY J: Just pause there. From the point of view of the principle of the law, the court effectively has unanimously said that that is what should be done. Justice Dowsett has added the order that the majority said it would have been better. So that is what the principle is and it is laid down for future cases.

MR GLYNN: Your Honour, my submission is that the court there in a sense has left it as optional. They have simply said that it would be better. They certainly have not made it a requirement and, in my submission, it is obvious that it is a matter that crops up frequently in trials of more than one accused and it certainly seems to appear before the courts not infrequently. My submission is that really what is required is a statement from this Court saying that it is not optional, that it is a requirement of a summing up.

The court has gone on to say that it is unlikely that the jury mistook the judge's intention, but again, in my submission, even that does not place it high enough. There really should be a greater degree of confidence that a jury could not have mistaken it and, in my submission, when one has regard to the summing up, it perhaps shows the error of the Court of Appeal's view in that, when one looks at the passage impugned which is at the bottom of page 30 and the top of page 31, a jury with that would, in my submission, be highly likely to conclude that the evidence of an accused in his own defence where he was seen to be an accomplice was significantly devalued.

TOOHEY J: Is it right to say that this matter came before the Court of Criminal Appeal principally in regard to the failure to order separate trials? I am not suggesting that this point was not live before the court, that is the point which you are now agitating, Mr Glynn, but - - -

MR GLYNN: My learned friend just draws my attention to page 67 of the record, your Honour.

KIRBY J: I suppose you say that once - - -

MR GLYNN: Mr Rafter reminds me of the matter which I was looking for. The original ground of appeal was only on the separate trial issue.

TOOHEY J: Yes, that tends perhaps to explain to some extent the way in which the Court of Appeal expressed itself in regard to the second point. It may be that it did not loom as large in the argument before the Court of Appeal as it is now being asked to do.

MR GLYNN: That certainly seems to be correct, your Honour, because at page 67, line 15, in the passage Mr Byrne has pointed out to me, the majority say:

The substantial point taken on behalf of Peter Baira by Mrs Richards was that he should have had a separate trial: in addition, it was said that the jury was invited to discount Peter Baira's evidence, on the ground that he was an accomplice.

So your Honour's assessment seems to be, with respect, a correct one.

TOOHEY J: It tends perhaps to explain the way in which the Court of Appeal expressed itself in terms "it would have been better to", which it may not have done had that been the principal matter which was being urged before it. That is only by way of possible explanation.

MR GLYNN: Yes, your Honour. The trouble, with respect, is that people reading that judgment will not necessarily see it as an obligation.

KIRBY J: I would think trial judges with an instruction - "it would have been better". It is a pretty strong statement and you have Justice Dowsett saying it is compulsory. I do take your point but, looking at it from the point of view of special leave, we have Webb, we have the particular circumstances, a case fought on whether there should have been a separate trial, that determined against you and not before us, and then the question of a few words in a judge's direction, the Court of Criminal Appeal saying "it would be better". I think it would be better, I think it would be very much better, but - - -

MR GLYNN: Perhaps it is phraseology, your Honour, but, in my submission, the current thinking about trials of co-accused is that essentially they should be heard together which means, if one person gives evidence or anyone gives evidence, this problem is going to arise and does frequently arise. In my submission, that is why it is a matter of some importance.

TOOHEY J: There is no request for a redirection, is there?

MR GLYNN: No, your Honour.

TOOHEY J: I say that only in the sense that perhaps if the trial judge had been directed to what was said in Webb, it may have led to a more precise direction than was given. In that sense perhaps Webb says what needs to be said in this matter.

MR GLYNN: Yes. Again, your Honour, if I could, with respect, submit that even Webb does not perhaps make it mandatory but, if what your Honour says is correct, it makes my submission a fairly difficult one.

KIRBY J: If this were the Court of Criminal Appeal, you would have a very smooth run as far as I am concerned.

MR GLYNN: Your Honour, I would have unfortunately expected a very smooth run before the Court of Criminal Appeal had I been arguing it on this occasion and it just did not happen. Perhaps had there been a statement from this Court saying it must happen, it might have been enough. I think that is as far as I can take it, your Honours.

BRENNAN CJ: Thank you, Mr Glynn. We need not trouble you, Mr Byrne.

The case involves no new question of principle but only the application of established principle to the circumstances of the present case. A majority of the Court of Appeal were of the opinion that the jury would not have been misled into wrongly discounting the applicant's evidence in his own trial. The question whether that view of the summing up is correct, rather than the view of Dowsett J, is not a question which warrants a grant of special leave. For these reasons, special leave will be refused.

AT 2.29 PM THE MATTER WAS CONCLUDED