Smith v The Queen [2004] HCATrans 105 (2 April 2004)

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Smith v The Queen [2004] HCATrans 105 (2 April 2004)

Last Updated: 13 April 2004

[2004] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H2 of 2003

B e t w e e n -

BRUCE JASON SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 2 APRIL 2004, AT 10.24 AM

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC: May it please the Court, I appear for the applicant. (instructed by G.A. Richardson)

MR T.J. ELLIS, SC: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions (Tasmania))

McHUGH J: Yes, Mr Holdenson.

MR HOLDENSON: In his final address to the jury the Crown Prosecutor in this case invited the jury to reject the various accounts which had been given by the accused, as he then was, including within his record of interview and, furthermore, within his sworn evidence before the jury.

The Crown Prosecutor based this invitation upon a number of contentions: first, that there was a lack of consistency between the various accounts given by the accused; secondly, there were some improbabilities within those accounts; and, thirdly, the accused man, to use the prosecutor’s language, was making it up or not telling the truth or minimising things - just pausing there, no room for error by reason of honest mistake, because were he to tell the truth he would be saying things which, on this case, on these facts, would amount to murder, namely fatal kick or fatal hit to the head of Mr Garwood whilst he was on the ground, that is no self defence, with the requisite mental state.

If I could just take a few minutes to develop that by reference to the final address in this case. Could I take your Honours to page 108 of the application book, and I know to some extent it has been done in the summary of argument, but if I could just take your Honours through this analysis and then I will take your Honours to the judgment below and I can identify, in my submission, four fatal flaws and take it from there.

Could I take your Honours to page 108. Your Honours will see first at about line 21, that is the first page of the prosecutor’s final address, the prosecutor says:

You’re perfectly free to reject much of what Mr Smith says . . . you don’t have to take his word for it . . . we’re not bound by the murderer’s word as to what happened.

Just glossing over whether or not that is an improper remark, line 30 there is more of this, he conceals things; lines 38 and 39, he is sneaky and at line 44 to the bottom of the page it is all improbability theory. I am not going to pause, with respect, to those matters at the moment. Over the page to 109, the first five lines on the page are all about variations or changes in the accounts given by the accused. You get that in the middle of the page from lines 19 to 24, for example, line 21, “To the police he said” down to line 23, “That’s not his version to us. His version to us for the first time”, down to lines 31 to 42, again it is he is inconsistent in his accounts.

Over the page to 110 is the first of the passages of real significance for present purposes. Could I take your Honours to line 9:

But Mr Smith –

the accused –

has kept that hidden, even at that point . . . And he’s got a little bit of time to think about it, he’s got two hours and he starts into an interview, and the version’s . . . He was sure he –

Mr Garwood, the victim –

was going to throw a punch. If he had been why didn’t he say so? Why does he say so now months after the event? Because of the consequences.

Just pausing there, can I translate that into appellate lawyer language which is really the language that the jury may well have considered was being said to them. What is there being said is that the accused did not say, in his record of interview, that he believed Mr Garwood was going to throw a punch, but he says it now because now Mr Garwood has died and he needs to lay an evidentiary foundation for self defence. In other words, he is lying because he is otherwise unable to account innocently for the evidence given against him and that is the language of Edwards. You get it again at lines 27 onwards, but in particular at line 31:

When he comes to give us his version here they’re bouncing off the walls with great force, crashing into the walls, because he knows at this stage that Mr Garwood has sustained awful injuries that could only have come from considerable force and he is making up a story –

et cetera. So, again, he is lying because if he does not he has no explanation for the grave injuries sustained by him and if that is the case there is no defence to murder.

On page 111, at lines 4 to about 9, it is all about improbability. Jumping down to the foot of the page, line 46:

Is Mr Smith likely to own up to this, of course not, who would? It’s a shameful, terrible thing to have done. It’s something that he knew would cause death, he probably -

Just pausing there, that is referable to what precedes that passage on the page about the serious injuries sustained to the head and, therefore, to the brain of the deceased man. What he is saying at the foot of the page is the accused cannot tell you about the big kick or the big hit because if he did, knowing as he did what it would do to Mr Garwood, he would be admitting to murder. Over a couple of pages, because there is a blank page there, 112, line 13:

His whole pattern of minimising things from assault . . . my wife, to this self defence that he’s on about is an intelligent man seeking to get away from the consequences of his actions -

namely big hit, big kick -

when he was in this rage.

So, again, he is lying to avoid the consequences of what he did. You get it again at line 21:

he’s come to this Court to tell you things that just don’t fit with the evidence, his version of events, and he’s made things up.

Again, at line 33:

the point is that he doesn’t tell the truth, that he is glib, that he covers up, that he never told the truth right from the start because he’d done the shameful last one to go on with -

that is the last hit or the kick to the body of the man who subsequently died. The most he could bring to say the truth of it was an assault so again he has lied to you rather than tell you about the big kick or the big hit. The last six lines of the page are again about variation.

The Crown Prosecutor has clearly, in those passages, contended that the applicant’s account was a lying account with respect to a critical matter and he has lied because had he instead told the truth he would be saying things which amount, on the facts of this case, to a confession to murder and those contentions were both prominent and forcefully put and that is in a context - I do not want to be a tally clerk about this, but if you add up the lines, and perhaps this is the wrong way so I will do it quickly, there are about 250 lines of final address there and there are 45 lines of “consciousness of guilt” theory and there are about 70 lines of he has lied, inconsistency of accounts, implausibility.

KIRBY J: But implausibility and inconsistency of accounts are the stock-in-trade of a criminal trial.

MR HOLDENSON: No problem with that. It is not said he was not entitled to do it, I am not saying that. What happened, however, was the court below proceeded on the basis that the prosecutor was not contending to the jury that the lies or the made-up bits constituted independent evidence of guilt, and that is in the judgment below at paragraph 7. But the applicant’s submission is this, the jury may not have so understood the limited manner in which the prosecutor sought to rely upon these lying accounts.

McHUGH J: Well, if that was the case, counsel at the trial should have perceived the jury’s reaction and asked for a direction, and he did not.

MR HOLDENSON: I am met with that and that is right, but if we go back to cases like KBT v The Queen, as long as it is not a tactical decision and this cannot have been a tactical decision, then a miscarriage is a miscarriage is a miscarriage because you lose a fair chance of acquittal in accordance with Mraz and all the cases. This case is so far removed from what the trial judge did in Zoneff and so far removed from what the prosecutor did in Dhanhoa as to mean that the judgment below is just contrary to each of those cases. Dhanhoa, of course, had not been decided at the time the judgment below was delivered.

So, on an analysis of the passages in Zoneff and by reference to each of the judgments in Dhanhoa, including your Honour Justice McHugh’s judgment, there ought to have been a direction to ensure that the Crown case was being considered by the jury in accordance with what is said to be the Crown argument, namely, these are lies as to credibility.

I have identified in the outline of submissions the directions which ought to have been given, but could I identify the errors in the judgment below. Could I take your Honours first to page 188 in the application book in the judgment below where your Honours will see the last two lines on the page and this is the first of four flaws, in my submission, the last two lines on the page:

Counsel made use of inconsistency, inaccuracy and improbability in his closing address-

to the jury. Now, he went further and in those passages which I took the Court to a moment ago he has gone further. Secondly, could I take your Honours back to page 183 of the application book, paragraph 13 which is about two-thirds of the way down the page, three lines into the paragraph:

He was inviting the jury to disbelieve the appellant, not seeking to use a lie already established as a basis for disbelief.

That sentence is wrong and I will identify that by reference to the final address. Could I take your Honours back to page 111 and at page 111, and to use the language of Justice Callinan in Dhanhoa’s Case, this is somewhat subtly put. At page 111 at lines 4 to 8, the prosecutor identifies a statement made by the accused, namely, it is all about the punch being thrown with enormous force or a kick, and what he is trying to get there is that there was a lie said by the accused, namely there was no big punch or kick to Mr Garwood whilst he was on the floor.

Then, what the prosecutor does down the page is identify four areas of evidence which constitute the means by which the jury can determine that the accused lied, not by getting the jury to say, “We disbelieve him”. In other words, this is the prosecutor identifying a lie and proving it by a means independent of disbelief. This is classic Edwards “consciousness of guilt” reasoning. Could I take your Honours to lines 11 to 13. It is in that paragraph that he identifies the severe injury sustained by the brain of Mr Garwood. Then at line 18, and this is the independence reasoning, he identifies it:

All the evidence, leave aside Mr Smith –

so he is asking the jury to assess this matter by reference to evidence other than one of the accounts given by the accused. Jumping a line –

I’ll tell you what evidence that is. You’ve heard that the brain cell was – the brain stem was torn –

so that is one, the severe injury sustained by the brain. Line 33, further down the page, it is about the abrasions on the forehead of Mr Garwood. Then at line 34, the “smear of blood” on the boot of the accused, and then at line 41, “the blood splatter on the wall”. In respect of each of these the defence, by reference to the sworn evidence in the case, had an explanation which was consistent with self defence and no mens rea.

What the prosecutor has there done is identified, by reference to four areas of evidence, putting his own gloss with respect to them, as to how it was that the jury, other than by merely disbelieving the sworn evidence of the accused, could determine that this man had lied. He says, “Leave aside the evidence of Mr Smith” and identified the independent route so that means, returning to the judgment below, could I take your Honours to page 191, your Honours will see at the foot of the page, paragraph 21, second sentence:

They could not be said to be lies unless and until the jury failed to accept the appellant’s account as accurate and truthful.

That is not how the prosecutor went to the jury on that page. Whether or not it is subtle or not is not to the point. The court below has there failed to recognise what the prosecutor was expressly saying or, alternatively, may well have been understood to have been saying.

KIRBY J: If there is this subtle suggestion in what the prosecutor was saying, or even not so subtle, one would have expected it to have been noticed in the atmosphere of the trial. I am the least inclined to insist that mistakes at trial are fatal, but here, it would seem to me, if there had been such a repeated mistake, you would have thought it would have been picked up in the way the trial was conducted.

MR HOLDENSON: I cannot change what is on the transcript.

KIRBY J: No, I know that.

MR HOLDENSON: He did not, but can I say this. There are two other aspects to this. A judge, with respect, is also obliged, indeed under a duty, to give all directions required in order to ensure no impermissible reasoning by a jury, no perceptible miscarriage of justice.

KIRBY J: That is true, but as was said in Zoneff by the Court it is tricky business for judges because often the last thing the accused wants is a lengthy direction about lying.

MR HOLDENSON: You do not need a lengthy direction, you only need the two paragraphs in Zoneff. Of course, they are the two paragraphs that were not quoted in the judgment below, paragraphs 23 and 24 and that would very much not have prejudiced the applicant. He was already severely prejudiced when you read this very powerfully expressed final address with the elbow as well, “You don’t have to accept the word of the murderer”, which is part of the context by which this is to be the ground identified and argued in the court below - - -

KIRBY J: There was no objection to that throwaway.

MR HOLDENSON: No, there was no objection to that either and, again, that is the way it is, but not only is the judge, in my submission, under a duty to get it right but, with respect, the prosecutor - he is the one that so articulated the Crown case - he too is under a duty to consider how it is that
his words, his manner of expression, might be construed by the jury. This was all compounded because in turn in his Honour’s summing up to the jury his Honour said, and it is at page 140 of the application book, first page of his Honour’s summing up, line 23, in the paragraph there set out, you can have regard to what was said in the final addresses. So his Honour has compounded the error, if there be error, and there is, if my submissions are accepted.

Can I say this as well - I see that at least one light has gone on here - if this judgment below stands then it is contrary to the judgment of Zoneff, in that there was no final address by the prosecutor, but by reference to what the trial judge in that case said to the jury, and it is a long way removed from Dhanhoa, and, of course, I understand Dhanhoa failed. But it satisfies the tests identified in the joint judgment of Chief Justice Gleeson and one other member of the Court and your Honour Justice McHugh in your joint judgment with Justice Gummow, because once one reads through that page 111 and how it was that there was identified the means by which the jury could determine (a) a lie by reference to matters other than just disbelieving him.

Of course, there is one other aspect to this, the jury were not given any assistance in that regard and I speak, of course, of what the High Court said in Smith v New South Wales Bar Association. It is a big difference between rejecting someone’s evidence or reckoning that he might have got it wrong and determining this man has lied, no assistance whatsoever given in that regard and notwithstanding the failure by defence counsel to take the point, there is a problem.

Could I just take your Honours to what, in my submission, is the fourth flaw in the judgment below. Could I take your Honours to page 192, at the foot of the page, your Honours will see paragraph 23. The final sentence of that says:

The giving of the direction would have added an unnecessary complication to the task of the jury -

Now, that, with respect, is wrong because in setting out Zoneff or four paragraphs from Zoneff as is set out in the judgment on that page, there is no regard to the short and simple passage in Zoneff which takes up about seven lines of transcript which would have completely defused the situation created by the manner in which the prosecutor expressed himself. I see the red light is on. If your Honours please.

McHUGH J: Yes, thank you, Mr Holdenson. We need not hear you, Mr Ellis.

The Court has expressed the approach that should be taken in respect of directions in a criminal trial as to alleged lies on the part of the accused in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. It has elaborated the instruction in Zoneff v The Queen (2000) 200 CLR 234 and Dhanhoa v The Queen [2003] HCA 40; (2003) 77 ALJR 1433. There is nothing in the facts or circumstances of this case that calls for modification of what was said in those cases. There is, therefore, no issue of general legal principle requiring the grant of special leave.

The question then becomes whether there has been a real chance of a miscarriage of justice in the case. We are not persuaded that this is so. The reasons of Justice Slicer in the Court of Criminal Appeal are compelling. The applicant was represented at trial by experienced counsel, who sought no relevant directions as to lies. We are not convinced that an appeal would have reasonable prospects of success if special leave were granted. Accordingly, special leave to appeal is refused.

AT 10.47 AM THE MATTER WAS CONCLUDED