Dyers v The Queen S225/2000 [2001] HCATrans 502 (12 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S225 of 2000

B e t w e e n -

KENNETH EMMANUEL DYERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 OCTOBER 2001, AT 11.13 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please your Honours, I appear for the applicant with my learned friend, MS N. MIKHAIEL. (instructed by Henry Davis York)

MR A.M. BLACKMORE, SC: If the Court pleases, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

MR BYRNE: Your Honours, this application raises what are, in our submission, important questions of principle in the administration of criminal justice. This Court has in very recent times dealt with issues which arise when the accused person in a criminal trial does not give evidence. This application does not raise those same issues but what may, in our submission, be legitimately regarded as consequential issues, issues which are derived from them and related to them.

CALLINAN J: Mr Byrne, can I ask you this. I do not want to interrupt you, but probably your best point is the Jones v Dunkel point, is that right?

MR BYRNE: We would submit, with respect, yes.

CALLINAN J: But counsel for the applicant at the trial did not ask for any redirections on that, is that right?

MR BYRNE: That is right.

CALLINAN J: It just seemed to be assumed by everybody that the same rule applied to the defence as applied to the prosecution, is that right?

MR BYRNE: That assumption seems to have been made. Indeed, in our submission, the explanation for counsel not seeking a direction, or not resisting the direction that was given, can probably be found in the fact that this trial was conducted before the judgment of this Court in RPS was published.

CALLINAN J: Can you direct me to the statement in the majority judgment which goes furthest. The majority judgment does not go as far as my judgment, is that not right? There is a difference really. I say categorically in effect that there is no room for Jones v Dunkel directions against the defence in criminal cases. I think I say something to that effect, do I not?

MR BYRNE: Your Honour says also in your Honour's judgment in RPS - and we would, with respect, rely on this matter as a matter which tends to suggest that this is an appropriate matter for the grant of special leave - that the application of Jones v Dunkel generally to criminal cases is a matter which is ripe for review, if I can perhaps paraphrase what your Honour said.

McHUGH J: That means overruling Burdett decided in 1820 and followed ever since.

MR BYRNE: I appreciate the differing views about these matters, your Honour.

CALLINAN J: Can you tell me how far the majority judgment went in RPS? Can you just draw my attention to that.

MR BYRNE: I think paragraph 28.

GAUDRON J: The majority judgment did go some distance.

MR BYRNE: Yes. The relevant part of the majority judgment - Jones v Dunkel is referred to in paragraph 23, but I think the most important part of the joint judgment is at paragraph 28 of RPS, where in the second sentence it was said:

The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations -

discussed in Weissensteiner. I should say that your Honour Justice McHugh's judgment in RPS dealt with the question of the application of Jones v Dunkel reasoning to an accused person, and particularly in the light of section 20 of the Evidence Act.

In our submission, this case raises an important question about an issue that was not determined by RPS or, indeed, by the subsequent decision of the Court in Azzopardi. That is the extent to which Jones v Dunkel-type reasoning may be available against the defence in a case where the defence does not call witnesses who it is suggested should have been called.

McHUGH J: What is the case in New South Wales? Is it Williamson? Is that the case where Chief Justice Street said one has to be careful about giving the - - -

MR BYRNE: That is Buckland, your Honour.

McHUGH J: Yes, Buckland.

MR BYRNE: Buckland was a case in 1979 where his Honour said the application of Jones v Dunkel in criminal cases must be made with extreme caution because there may be many occasions where the reasons why a witness is not called cannot be disclosed.

CALLINAN J: But how can it do otherwise than subvert the onus of proof?

MR BYRNE: In our submission, it must.

GAUDRON J: These were not witnesses; these were peripheral witnesses.

MR BYRNE: Very much so, although it may be said that one of them was a person who was referred to in the statement made by the applicant, but the other witnesses certainly were at best peripheral witnesses.

GAUDRON J: I cannot understand the utility of a general Jones v Dunkel warning in a criminal case, which is what I understand was given here. You can assume if these witnesses were not called, they would not have helped the defence case. That seems to me to be - - -

CALLINAN J: It also assumes that the defence has to put a case in evidence.

GAUDRON J: Yes, but at least in a criminal trial, I would have thought if there was any room for Jones v Dunkel arising out of evidence that calls for an explanation, if you like, you would have to identify what part of the case was not being helped rather than make a general statement saying you can assume it does not help the defence case when, as Justice Callinan points out, there does not have to be a defence case.

MR BYRNE: We would submit there is a need, if such a direction is even contemplated, to couple it with a reminder to the jury of the onus of proof in criminal cases. This was not just a passing reference by the learned judge to this matter. The direction occupied quite some considerable time. If I could take your Honours to that part of the summing up which dealt with it, it is at the bottom of page 79 of the application book at line 50 where his Honour said this:

In his address to you, the Crown Prosecutor also - and I omitted to say this when I was taking you through the Crown's address - referred you to the failure of the accused to call -

and then a number of witnesses -

Denise and Wendy and Peter and Mariata -

a name similar -

and Bernie -

and other people.

He said they have not been called, they are of no assistance . . . He says, therefore, the only conclusion you can draw from their failure to attend is like the defence asked you to draw that they could not help. They would not help what the defence version of events is if they had been called . . . you are not entitled to speculate upon what that witness might have said -

and so on. The direction continues all the way across to the following page.

McHUGH J: Given the decision in Azzopardi and the strong statements of Justice Callinan, it is hardly open to argument that it is not a case for the grant of special leave, I would have thought, subject to hearing what Mr Blackmore says.

GAUDRON J: Let us not make the rift too apparent but, if you want special leave travelling beyond this point, I would like to hear what you have to say about the deficiencies of the Longman warning. I think if you could just briefly tell us why it should be included if you were to get a grant of special leave on the first point.

MR BYRNE: Your Honours, the Longman direction is, in our submission, with respect, inadequate. Again, it should be said in fairness to the manner in which this trial was conducted that it preceded the judgment of the Full Court in Crampton's Case which relatively recently reviewed directions in the nature of a Longman direction. The way in which the learned judge directed the jury here was, in our submission, simply inadequate to meet the circumstances of the case.

The point that we would, with respect, wish to press on this application is the further point regarding the role of the Court of Criminal Appeal in determining whether - - -

GAUDRON J: We do not need to trouble you on that one, I think, at this stage.

MR BYRNE: May it please your Honour. The question regarding the Longman direction again was the subject of a ground of appeal in the Court of Criminal Appeal. The Court of Criminal Appeal's judgment in relation to that matter simply concluded that what the learned judge had said to the jury in the circumstances was sufficient. Clearly, what was said in the judgment of the Court of Criminal Appeal preceding this Court's judgment in Crampton would not have passed the standards which are established now in Crampton. For that reason, that is an aspect of the case which, in our submission, justifies the submission that there has been a miscarriage of justice in this case.

GAUDRON J: Yes. We will hear from Mr Blackmore.

McHUGH J: It is pretty difficult to resist a grant of special leave, Mr Blackmore. All the old principles are in retreat.

MR BLACKMORE: They seem to be, even - I thought there was an evidentiary onus on somebody if they raise an issue, but anyway, perhaps this is an argument for another day.

CALLINAN J: An 1820 view initially. There has been a lot of water under the bridge since then.

MR BLACKMORE: Perhaps it justifies some look at it since then. This would not necessarily be a case where the Crown would be concerned on the facts to have the issue looked at because it is a case, in our submission, where there were good reasons for applying Jones v Dunkel if it was to be applied. I cannot really say more than that.

GAUDRON J: That is a big assumption: if it was to be applied.

MR BLACKMORE: Correct. In other words, I am saying if you are going to apply it in any case, you would almost certainly apply it in this case. Here was a case where - - -

GAUDRON J: That seems to make it a good case to consider the issue.

MR BLACKMORE: I agree. I accept that that is a good case. If I can leave that aside then and perhaps go to the Longman point - and I do not want to overstate the point. I mean, if the Court is going to hear the case, it can hear the Longman point. But, let us face it, this is not an issue now of any great public importance.

GAUDRON J: No, but if one is granting special leave - - -

MR BLACKMORE: I think I just made that point. This is five years delay. He did in fact ask the jury to scrutinise the evidence very carefully. He did raise with the jury the question of the difficulties that the accused would face in trying to meet this case, so in many, many respects it went to all of the Crampton issues, and the recent decision of this Court in Doggett was another example. It went to all of those issues, except it did not use the word "dangerous".

CALLINAN J: The problem might be though that the other misdirection on Jones v Dunkel - I do not know whether it does not in some way infect, or might possibly infect, what was said about scrutinising the evidence, not intentionally so, but I am not too sure that the infection does not spread.

MR BLACKMORE: I have not thought of an answer to that. I think it is difficult to speculate. No, I do not otherwise resist the grant of leave.

GAUDRON J: Thank you, Mr Blackmore. There will be a grant of special leave in this case, Mr Byrne.

MR BYRNE: May it please the Court.

GAUDRON J: The Court will now adjourn briefly to reconstitute.

AT 11.27 AM THE MATTER WAS CONCLUDED