Fennell v The Queen A7/1999 [2000] HCATrans 124 (24 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A7 of 1999

B e t w e e n -

BRYCE KINGSLEY FENNELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 MARCH 2000, AT 12.56 PM

Copyright in the High Court of Australia

MR G.B. HEVEY: May it please the Court, I appear for the applicant. (instructed by Herman Bersee)

MS P. KELLY: May it please the Court, I appear with my learned friend, MR N. ALEXANDRIDES, for the respondents. (instructed by the Director of Public Prosecutions (South Australia))

GLEESON CJ: Yes, thank you. Yes, go ahead, Mr Hevey.

MR HEVEY: This is a discrete point which is raised in this application. It relates to the question of a Liberato-type direction and whether the failure to give a Liberato direction by the learned trial judge in this case amounts to such as ought to have allowed the appeal before the Full Court, and leave ought to be granted in this case for the matter to be further reviewed.

The aspect of the direction by the learned trial judge is contained in the application book at page 4, line 24. At the very commencement of his Honour's summing up to the jury, at about line 22, he indicated to the jury:

Because it is your decision, and it is your responsibility to decide where the truth lies in this matter, bearing in mind the onus of proof as I will describe it to you. It is not my job, it is yours, therefore, as far as matters of fact are concerned, what you think is accurate or inaccurate evidence, who you think is telling the truth or is not telling the truth, are matters for you, and not for me. That is your function, and not mine.

In so far as it goes, that direction itself may not be objectionable. Where the applicant said that the learned trial judge fell into error in this particular case is that there was oath against oath and it was simply a matter of uncorroborated evidence where the alleged victim had one version and the accused had yet another, and what the - - -

GLEESON CJ: Where do we see that?

MR HEVEY: That is where the trial went, the evidence was only oath against oath.

GLEESON CJ: Where does the judge say that?

MR HEVEY: He does not say that, your Honour. I am putting this to you as a submission as where he has gone wrong, because I say that as oath against oath, in this case it was incumbent upon the trial judge in summing up to the jury to tell them that there were a number of possibilities. The first one is that they might, of course, be satisfied beyond reasonable doubt on the basis of the victim or the alleged victim's evidence alone. The second is that they might believe the accused's version and if that were the case, then the accused would be acquitted. The third is that they might be left in a state of not knowing one way or the other and that the accused is entitled to an acquittal on that basis as well.

But what he did not go on to say is the Liberato direction which is contained in the Full Court judgment in the judgment of Justice Mullighan, which appears at page 33, line 20 and onwards of the application book, and there Justice Mullighan was referring to Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 and, in fact, quoted the judgment of Justice Brennan as he then was at page 515. The important part of that quotation appears at lines 27 and following:

GLEESON CJ: I should have thought that what appears at line 21 and 22 is of some significance.

MR HEVEY: It is, your Honour, but that goes into a situation where you simply have oath on oath as occurs in so many sexual cases. What we have here is just the victim, with no corroboration and saying that he was raped, the accused saying there was sexual contact, but that it was consensual and not amounting to rape, but down at lines 21 to 22, the question of whether a jury is going to be asked "who is to be believed?" is commonplace occurs in all those cases. What Justice Brennan was pointing out and with whom Justice Deane agreed on this topic, was at line 27:

The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence.

GLEESON CJ: Were the jury not told that here?

MR HEVEY: They were told on a number of occasions that the onus of proof was beyond reasonable doubt, and they were told that what it was for them to do was to determine where the truth lies. They were not given the specific Liberato direction.

GLEESON CJ: Could you just tell me what you call a Liberato direction, so that we are talking about the same thing?

MR HEVEY: The Liberato direction, as I see it, your Honour, is that the jury must be told that when you have oath against oath, that it is not enough simply that you decide which of the versions is correct or which one you prefer. You must be satisfied beyond a reasonable doubt on the prosecution case that the element has been made out.

GLEESON CJ: Was such a direction asked for?

MR HEVEY: No, the counsel who appeared at trial asked for a Calides-style direction.

GLEESON CJ: It is very convenient shorthand to label directions by reference to the names of decided cases, but unless there is an actual request made to the trial judge for direction, it is a little hard to get a grip on what exactly it is he is said to have omitted.

MR HEVEY: Can I take your Honours then to the transcript which appears in the application book in relation to the judgment itself. At the finish of the charge to the jury, which is on page 22 of the application book, the jury was sent out at 11.21 and then his Honour asked the question whether there was any further directions required. Counsel at the trial at line 10 or 11 said to the trial judge:

Would it not be prudent to put to the jury a Calides type of direction?

HIS HONOUR: Oath on oath? Haven't I said that?

MR VADASZ: No, Calides I don't think is quite oath on oath. If they can't be satisfied where the truth lies, then they have a reasonable doubt. It is their first trial, and I am conscious of the fact that maybe they think they have to reach a decision, and Calides states the obvious, but it states that if you are not satisfied as to where the truth lies, then you cannot be satisfied beyond reasonable doubt and you must, therefore, acquit.

HIS HONOUR: - - -

CALLINAN J: Mr Hevey, what about what is quoted at page 35 from the trial judge's directions, line 26 and 27:

If you think what he said is the truth, if you think it is reasonably possible that it is the truth, bearing in mind the onus of proof -

and so on -

then he must be acquitted.

That seems to cover the sorts of matters that you are talking about.

MR HEVEY: Your Honour, with respect, it is our submission that that goes to two parts of a three-part area. The two parts that it covers are, in effect, that when you are looking at the defence case, if you think that the defendant is telling you the truth, you will acquit. If the defendant's version raises in your mind a reasonable doubt, but you still do not believe him, then you should also acquit. What it does not go to is you can only convict when the prosecution has proved its case beyond a reasonable doubt.

CALLINAN J: Well, but his Honour said that:

reasonably possible that it is the truth, bearing in mind the onus of proof, bearing in mind the Crown have to prove beyond reasonable doubt that it is not the truth, then he must be acquitted.

MR HEVEY: In our submission to the Court, that does not go far enough in respect to the Liberato-style direction and what we have difficulty with or what we would submit was wrong in this case in the Court of Criminal Appeal's reasoning is at page 36 of the application book. Justice Mullighan, with whom the other two justices concurred, indicates at the top of the page:

Despite the contention to the contrary, there was no misdirection to the jury. The learned Trial Judge made the burden and degree of proof clear to the jury at all times.

But he goes on:

As has been mentioned, the reference to the responsibility to decide where the truth lies in the matter was made in the context of it being the role of the jury to decide the facts and to assess the witnesses. Unlike in Calides, it was not mentioned in the context of opposing bodies of evidence and could not have deflected the jury from the application of the directions as to the burden and degree of proof.

Now, what we say arises in this case is that you cannot distinguish between what the Court of Criminal Appeal through Justice Mullighan has decided, that is, that it relates to oath against oath and not in relation to the body of evidence, because what you have here is that the bodies of evidence are so inextricably wound up with oath against oath that you cannot distinguish them. There is a distinction without a difference, and the Calides and Liberato strain of - - -

CALLINAN J: But you keep on saying "Liberato". There were only two Judges, and they were both in dissent, who said that. The other three Judges did not say anything that specifically endorsed what the two dissenting Judges said.

MR HEVEY: I accept that, your Honour, but in this situation the facet of their judgments, albeit in dissent, as such has been used throughout this State, in my understanding, to direct juries in relation where you have oath against oath. It was not done in this case and we say that it cannot be covered up by saying it does not matter where your are only oath against oath. You only need that direction where it is two opposing bodies of evidence. We say that is an extension - - -

GLEESON CJ: One thing that is or at least ought to be completely clear, is that no particular verbal formula is required in relation to matters such as this in a summing up. The question in each case is the question that was asked by the Full Court, that is to say, whether or not the trial judge adequately conveyed to the jury the notion that the onus of proof was on the Crown and that the degree of proof was beyond reasonable doubt and did not confuse them by leading them to think that their task was simply to decide which of two competing versions appeared to them to be the more plausible.

MR HEVEY: Well, it is our submission to this Court that confusion was possible having regard to his Honour's comments at the start of his summing up that it was their job to find "where the truth lies", that he ought not to have used those words, or if he chose to use them, he ought to have qualified them in the way as was suggested by Justice Brennan and Justice Deane in the Liberato decision. So that is our submission to this Court, that his failure to so qualify at the time - remembering that this was a jury at the beginning of the month, it was their first trial - that there was a possibility that they would be led to confusion, and where you simply had the oath against oath, they could be directed in the clearest possible terms that they can only convict on the basis of proof beyond reasonable doubt, having regard to the evidence of the alleged victim. Those are our submissions to the you. May it please the Court.

GLEESON CJ: Thank you very much. We do not need to hear counsel for the respondent.

The Court is of the view that there is insufficient reason to doubt the correctness of the conclusion of the Court of Criminal Appeal of South Australia to warrant a grant of special leave in this case. The application is refused.

AT 1.10 PM THE MATTER WAS CONCLUDED