Mullins v The Queen B9/2002 [2002] HCATrans 600 (15 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B9 of 2002

B e t w e e n -

PAUL DALE MULLINS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 10.49 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC: May the Court please, I appear with MR G.M. McGUIRE of counsel. (instructed by Ryan & Bosscher)

MS L.J. CLARE: May it please the Court, I appear for the respondent. (instructed by Office of the Director of Public Prosecutions (Queensland))

GAUDRON J: Yes, thank you, Mr Byrne.

MR BYRNE: May your Honours please, the point in this application is a short one. The applicant was convicted of attempted murder and sentenced to 20 years imprisonment. The only evidence inculpating him in the offence was that of a 17-year-old person who was declared a hostile witness at trial in order to extract the evidence inculpating him. Against that background, our submission is, prima facie, that this is the very type of case where the defence submissions and the arguments of counsel for the defence are required to be placed before the jury by the trial judge. Not only, as your Honours would have seen from the material, did that not occur, but her Honour twice in some detail explained to the jury the route to conviction in accordance with the Crown evidence. We refer to - - -

GAUDRON J: The defence case was quite simple, was it not, namely that the applicant took no part in the assault? That was the case?

MR BYRNE: Yes, your Honour.

KIRBY J: You cannot keep saying that over and over again, can you? I mean this - - -

GAUDRON J: What the defence sought to do was to weaken, challenge, question the reliability/acceptability of the evidence to the contrary?

MR BYRNE: Quite so, as is - - -

GAUDRON J: They were the only issues from the defence point of view, were they not?

MR BYRNE: They were, but they were because they were the only issues, critical and essential issues, on behalf of the applicant.

GAUDRON J: But in relation to the prosecution evidence, the trial judge drew attention to the defence arguments and challenges, did she not?

MR BYRNE: In our submission, no. What happened is - and may I take one step back from that - in our submission, there are two requirements in circumstances such as this for a fair trial according to law. One is that the evidence is dealt with by her Honour, together with the trial judges, in this case her Honour's comments and appropriate directions and warnings in respect to the evidence and its nature, that is the first requirement. The second requirement is that the defence case is placed before the jury, not simply as a matter of law as to why there are difficulties with the Crown case, but what the defence arguments are. Now, what the Court of Appeal said is that - - -

GAUDRON J: The defence argument was, "I was not part of the assault team." It was really simple, was it not? Nobody could have - "and the evidence that says I was should not be believed". That was the defence case.

MR BYRNE: Yes, and the defence counsel in the circumstances no doubt made a number of challenges to why the principal witness should not be believed over and above the fact that her evidence was uncorroborated, that she was a hostile witness, et cetera. She was cross-examined at some length and it is the role of defence counsel in a criminal trial to highlight for the jury the difficulties that that witness has. This Court recently in TKWJ v The Queen has again emphasised the importance of the role of counsel in a criminal trial and in a case such as this, the submissions by counsel as to the nuances in the trial, namely, any body language, any tonal variation during cross-examination, any words, et cetera, used by the primary witness against the applicant were important issues for the defence case and they were matters which should, in our submission, have been placed separately and independently before the jury. It is not sufficient, in our submission, for what was done here, namely, her Honour to go through the evidence of the primary witness and give what warnings are required by law.

If we can take your Honours to record 263 of the application book and this is the outline of argument by the respondent. In the third paragraph on that page, it said:

Whilst the trial judge did not summarise the arguments of defence counsel the respondent submits that the case for each appellant was adequately put before the jury in the summing up.

What that accepts, in our submission, is that it is good enough in a case such as this for the trial judge to do what she did, namely, simply enumerate the evidence and give warnings required by law in respect to that evidence. In our submission, in a case such as the present, more was required. Specifically, although it was a simple defence case, the jury were entitled to have placed before them the precise arguments by counsel as to why they should not accept the primary witness and why they should not convict on that evidence. That is something different, we say, to the legal requirements or warnings in respect of her evidence. That is our submission, if your Honours please.

GAUDRON J: Yes, thank you, Mr Byrne. Yes, Ms Clare.

MS CLARE: If it please the Court.

KIRBY J: Ms Clare, it is what I think Justice Holmes says at paragraph [21] that just worries me and that is that it is true that the defence case is relatively straightforward and it is also true that her Honour in the course of dealing with the Crown case pointed to the countervailing arguments of the defence in the body of that. But what his Honour says is that her Honour:

did not at any stage of her summing-up assemble the arguments put by defence counsel -

and there was, I think, a request for redirection specifically directed at this and - - -

MS CLARE: Yes, there was.

KIRBY J: - - - the complaint is that the three lines of instruction on the defence case was a very short counterbalance in what I will call the emotion or the drama of the presentation of the two cases. Now, that is the matter that is just worrying me a little. What do you say in answer to that?

MS CLARE: Taking the summing up as a whole and in the climate of the trial itself, the jury could have been under no misapprehension about what the defence case was or what the key issue in the case was and that was the credibility of the principal Crown witness. If demonstration of that is required, it comes from the request of the jury for a rereading of Ms Suzuki's evidence. The jury asked the judge after the summing up had concluded to read out, in effect, all of the evidence of that witness, including the cross-examination.

KIRBY J: Yes, I remember that.

MS CLARE: That, in my submission, really highlights the fact that the jury were very alive to the issue of the need for - - -

KIRBY J: I understand or I take the force of that and I do take the force of the fact that her Honour in the course of presenting the Crown's case, as it were, put within the body of it the countervailing. But what do you say about Justice Holmes' statement which is clear law that it is desirable that a judge should, as it were, collect and compile the countervailing case assembling it all together and putting that. Now, Justice Holmes said that was desirable and I would certainly endorse what his Honour said. The question is whether the failure to do that amounts to a miscarriage in this case, that the failure to collect that in a separate statement is a departure from what is required by the law to get a fair trial.

MS CLARE: Yes.

KIRBY J: What do you say about that?

MS CLARE: In my submission, it really comes down to the circumstances of each case. In this case, as your Honour has already pointed out, I think, or as Justice Gaudron has pointed out, the defence was a very simple one, that is, that the Crown had not proved its case. On the other hand, the Crown case was complicated by the need to discuss the party provisions and also the consideration of alternative verdicts.

KIRBY J: Do you accept what her Honour says? Justice Gaudron has corrected me in the firmest possible terms concerning my reference to Justice Holmes and I apologise to her Honour, but do you accept what her Honour says that it would have been desirable in the summing up to put the defence case assembling it, as it were, in a separate collection?

MS CLARE: I accept that it would generally be desirable but there are aspects of this case that could have been counterproductive to the defence case if that process had been embarked upon, if it had been done in a different way. As it stood, the underlying premise of the defence, as her Honour said, was the criticism, the unreliability of Suzuki, and that was made very plain through the statements of her Honour. So that criticism had the authority of the judge's office, as opposed to simply a reminder of what counsel had said. But if her Honour had chosen to do the more conventional approach of taking the jury through the various arguments of the parties, the situation would have gone from having the warnings and criticisms pointed out by her Honour against the reliability of Ms Suzuki to - - -

KIRBY J: You say that the price of introducing a compilation at the end would have been that to get fairness and balance in the instruction to the jury, her Honour would have had to go again through the weaknesses of Ms Suzuki's evidence and that that would not have, in this particular case, advanced the defence case interests.

MS CLARE: Yes. I say that because, as the court found, there was no aspect of the defence submissions that had been omitted from the summing up, that not only would there have been arguments by the Crown in support of Ms Suzuki's credibility on the core issue, but also the co-accused, Franklin, relied upon Suzuki's evidence to establish that he had actually left the group, left the complainant before the body was thrown into the river. So he, in effect, was also in this trial relying upon the reliability of Suzuki on that part of the evidence. So that, if her Honour were putting the arguments of the parties, there would have been firstly an expounding of the strengths of Ms Suzuki, not only in terms of the arguments by the Crown, but repeated and perhaps amplified in some respects in favour of the co-accused, Franklin.

KIRBY J: I just would not like it to be thought if special leave were refused that I was in any way endorsing any view apart from the general principle that a judge must fairly, evenly and equally put the Crown and the accused's case and the complaint here is that this was three lines, but you say that that is a false analysis, that you have to look at all the lines within the lines that give the answers to the Crown propositions in the course of explaining what the Crown's case was and what the accused's answer was to the Crown's case.

MS CLARE: Yes and by taking it beyond simply saying, "The defence argument is" to "These are the problems with the evidence", the position was in a much stronger position before the jury.

GAUDRON J: Yes, we do not need to hear you further, Ms Clare, thank you.

MS CLARE: Thank you, your Honours.

GAUDRON J: Anything in reply, Mr Byrne?

MR BYRNE: Just two matters, if your Honours please. I should point out that counsel for both the applicant and the other person at the trial requested her Honour to put the defence case for each of them after the summing up and that request was declined.

KIRBY J: Yes, I know that and I mentioned that to Ms Clare.

MR BYRNE: May I also point out the analysis which is at page 167 of the application book, where it is pointed out that counsel for the present applicant - and this is 3(b) - concluded his address on the afternoon of day 4 of the trial. As Ms Clare has said, on day 8, that is four days after the address of defence counsel, the jury requested to be reminded to have reread to them Suzuki's evidence. That was done. Again, a request was made at that stage by both counsel to put the defence case and to repeat warnings about Suzuki and both those applications were again refused and the jury returned a verdict on day 9, that is, five days after they had last heard the defence arguments put and they were not put at all by the trial judge. That is all I have, your Honours.

GAUDRON J: Thank you, Mr Byrne.

There is no doubt that a trial judge must fairly put the defence case in the course of instructing a jury. Taken in isolation, the trial judge's statement of the defence case might be considered brief. However, it has to be understood in the context of her Honour's statement as to the arguments of defence counsel in relation to the evidence of the prosecution witnesses and the essence of the defence case, namely, that the applicant had not participated in the assault in question. Further, the jury was forcefully instructed with respect to the dangers of relying on the evidence of Ms Suzuki.

Accordingly, we are satisfied that there was no miscarriage of justice in this case and although time will be extended for the bringing of the application for special leave, special leave is refused.

Court will now adjourn for approximately 10 minutes to enable a link to be established with Perth. For the benefit of counsel in Brisbane, I can tell you that the next matter in the list, Aggarwal, will not be reached before 11.45, Canberra time, which is 10.45 Brisbane time, and the other matters certainly will not be reached before 12.15, Canberra time, 11.15 Brisbane time. The Court will now adjourn.

AT 11.07 AM THE MATTER WAS CONCLUDED