Giri v The Queen S33/2002 [2002] HCATrans 593 (15 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S33 of 2002

B e t w e e n -

NITIN GIRI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2002, AT 11.19 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MR M. BUSCOMBE. (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR G.E. SMITH: If the Court pleases, I appear for the respondent. (instructed by S.E. Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases, how the Court of Criminal Appeal resolves or addresses disputed issues of credit in the application of the proviso is, in our submission, a question of principle upon which the authorities are far from clear and, in our submission, this is a case in which the issue is very directly raised. The judgment of Justice Smart discloses an approach which, in our submission, is not the correct approach. The judgment of Justice Heydon, in our submission, does disclose the correct approach to the question.

GLEESON CJ: How do we most easily see the difference, Mr Game?

MR GAME: Your Honours, no doubt are aware that Justice Smart said that he accepted the matters of principle that Justice Heydon took, but if you go to page 157 you see Justice Heydon's judgment - can I say this just as we - we are not saying that credibility is completely irrelevant to the issue but the issue is slightly different than whether or not the court accepts the witnesses. The real question is might the jury have reasonably thought that the witnesses had sufficient credibility to raise a reasonable doubt. So it is the court putting itself in the position of the jury having regard to the error and its significance in the trial.

GLEESON CJ: The difference as I understand it between the majority in the Court of Criminal Appeal and the minority ultimately lay in their respective assessments of the strengths of the prosecution case.

MR GAME: That is true, your Honour, but we say that what Justice Smart ultimately did was ask himself who he believed rather than the question, could the jury have reasonably considered the witnesses that supported the defence case had sufficient credibility to raise a reasonable doubt, which we submit is the true question on the application of the proviso. If you approach it in that way, that would be consistent with the way in which the court approaches the issue of the proviso, for instance, when, shall we say, a defence has been incorrectly taken away, like provocation or self-defence, and in those circumstances the court asks itself, was there material upon which the jury might reasonably have acquitted or found provocation?

If we go to Justice Heydon, we see it in paragraph 44. There is no point in my reading it out, your Honours. It is that long paragraph 44 on pages 157 and 158, so I will just pause while your Honours read it.

GLEESON CJ: It is really that concluding point that was the point of departure, was it not? The jury might:

have a reasonable doubt about whether the appellant . . . contemplated the intentional infliction of grievous bodily harm as a possible incident to the joint criminal enterprise.

MR GAME: That is said to be the point of departure, your Honour, yes, but what we say - - -

GLEESON CJ: The majority said it does not matter much whether he kicked him or not, does it?

MR GAME: Probably, but, your Honour, the point made by - if he kicked him, then the case is a compelling case. If he did not kick him, then the defence case was that much stronger in the context of him either having not joined the joint enterprise at all. His case was that he struck him once when the deceased came at him, he fell to the ground and then the accused - or the applicant in these proceedings - ran away. That was his case. The defence founded on three witnesses, Diolosa, Bayes and Taria, and Justice Heydon had analysed what those witnesses had to say before that passage in his judgment.

If we go to Justice Smart's judgment - and I have to say that Justice Smart did say at paragraph 84:

I do not disagree with his statement of the principles applicable.

Your Honours, in our submission, close attention has to be given to what his Honour actually did. If you look at paragraph 90, he says in the second sentence:

Having considered that evidence I consider it to be overwhelming.

Then he goes through some witnesses. He examines a Mr Thompson's evidence with some care at paragraph 93 and he thought Mr Thompson was an important witness.

Again, in terms of what we would submit is the correct question, in our submission, it may be a matter of how one frames it, but it is not really a matter of how the court assesses Mr Thompson's evidence as such. Then he examines on the following pages Mr Diolosa and Mr Page and then Mr Bayes. Then we come to page 181, your Honours. His Honour at paragraph 102 says:

Three comments need to be made. First, some of the evidence, for example, that of Mr Bayes, was not reliable.

Your Honours, in the previous paragraph his Honour had said that the defence had taken their case to the jury on the basis that they might have entertained a reasonable doubt based on what Mr Bayes had to say.

What you are really saying is that what the defence had to say about that had no substance. Mr Bayes had a criminal record, he was in gaol at the time, but he was only 11/2 metres away from the offence. The question is really for the court on proviso, is Mr Bayes so unreliable that the jury could not have entertained a reasonable doubt based on his evidence? That is to say, the court does not assess his evidence with a view to them deciding whether or not he should be believed or not, but could the jury have acted on his evidence? So, what I am not saying is that you are bound by the absurd, but I am saying you are bound by any reasonable possibility, and that is consistent with the way in which the proviso is normally applied.

Now, you see, for example, in the third sentence there - the second sentence he says:

just because a witness did not see or recall seeing a particular event, that is the appellant kicking the deceased, does not mean that it did not happen.

That may be so but Mr Diolosa, who was a security guard who was very close by, said that there was only one kick and that the accused - the applicant in these proceedings - sought to pull the other accused off the victim. Then, in the next sentence it says:

Thirdly, a close reading of the evidence makes it apparent that Mr Thompson's evidence is of value -

So his Honour, as it were, is actually entering into the process and what we say is this is not the reverse side of the unsafe and unsatisfactory exercise, this is a different exercise. There are some judgments in Festa - and there is no need to take your Honours to it - but there is some examination of the proviso in Festa and Justice McHugh suggested, in effect, that it was the reverse side of unsafe and unsatisfactory. We say that that is not the correct discourse, that it is a different question and it is the question that I have put. If you go then to paragraph 107 on page 183 - - -

CALLINAN J: What about 105?

MR GAME: Sorry, your Honour.

CALLINAN J: Why is that not compelling?

MR GAME: Your Honour, paragraph 105 is against my argument and I should have taken your Honour to it. It is against the argument and that sentence - - -

CALLINAN J: It is fairly compelling, Mr Game.

MR GAME: It depends what one means by compelling. It is obviously a very strong Crown case, but the real question is the question that I have put and, in our submission, it is not simply based - - -

GLEESON CJ: What it goes to is the significance, or lack of significance, of the misdirection.

MR GAME: That is true and we do not suggest that you do not - this is a direction that goes to credibility issues because it says that there is more weight to be given, we say, to the Crown case and therefore more weight to those witnesses that support the Crown case and therefore it may have impacted upon credibility assessments. Unless there is no reasonable possibility that the jury would have accepted those witnesses that supported the Crown case, then the proviso cannot be applied, in our submission.

I am sorry, your Honours, I should have taken you to paragraph 105. Anyway, if we come to paragraph 107, what his Honour said there was - I will not read it, but he said:

it is possible from reading the evidence and the summing-up to gauge the quality of the evidence.

There are many conflicting accounts, we would say. Then he goes on to say:

More importantly, the trial judge . . . was satisfied beyond reasonable doubt that the appellant kicked the deceased.

This, in our submission, shows the error because the trial judge was not concerned in any way with what the jury should or should not have reasoned about the evidence or what the jury would reasonably have concluded. The judge is no longer concerned with that. He is making his individual - and I do not mean it pejoratively - subjective assessment of the material. That is irrelevant to the question and that is why we say that error is demonstrated in principle as to the way in which Justice Smart has resolved the issue.

He has assessed the evidence of Mr Bayes and rejected it, he has assessed the evidence of Mr Thompson and rejected it, and then he has found reassurance in what the trial judge had to say. That, in our submission, is not the correct - that demonstrates that he has asked himself, "Am I satisfied that the witnesses are not to believed?", rather than the question that I put to your Honours at the outset.

I put those submissions very briefly but those are our submissions on this application.

GLEESON CJ: Thank you, Mr Game. We do not need to hear you, Mr Smith.

The decision of the Court of Criminal Appeal in the present case turned on the application of well-settled principles to the facts and circumstances of the particular case and the case does not raise an issue appropriate to a grant of special leave. Furthermore, we are not persuaded that the interests of justice require such a grant. The application is refused.

AT 11.32 AM THE MATTER WAS CONCLUDED