Surrey v The Queen [2005] HCATrans 449 (23 June 2005)

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Surrey v The Queen [2005] HCATrans 449 (23 June 2005)

Last Updated: 1 July 2005

[2005] HCATrans 449

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B8 of 2005

B e t w e e n -

JOHN ARTHUR POWYS SURREY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 11.20 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC: May the Court please, I appear with my learned friend, MR A.W. MOYNIHAN, for the applicant. (instructed by Legal Aid Queensland)

MR M.J. COPLEY: If the Court pleases, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Queensland))

McHUGH J: Yes, Mr Byrne.

MR BYRNE: Your Honour, we acknowledged before the Court of Appeal, and we acknowledge in this Court, that the Crown case was a very strong one. We say that that does not, however, deprive the applicant of his right to have a fair trial according to law.

The background circumstances are these. The applicant did take part in an interview with police. During that interview he was asked questions and gave explanations in respect of both the Doorne and the Hoffman matters. Following that he did not give evidence at trial. What happened is, as a result of his failure to give evidence and the answers he gave in the record of interview, the jury received, adverse to his interest, directions both in what was called a “micro-Weissensteiner” and also Edwards directions.

In Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at page 70, paragraph 51 the Court in the majority judgment sets out the directions which are required in almost all cases in the situation where an accused does not give evidence. The Court then, in the same judgment, at paragraph 67, specifically deals with the directions to be given where a comment is to be made about the failure of an accused person to give evidence. If I may take your Honours briefly to paragraph 67, it states relevantly this:

If the circumstances are such as to permit a comment with respect to the failure to offer an explanation, it should be made plain that it is a comment which the jury are free to disregard. If made, it should be placed in its proper context.

Now, we emphasise that sentence, “it should be placed in its proper context”. The judgment goes on:

That requires identifying the facts which are said to call for an explanation and giving adequate directions to the jury about the onus of proof, the absence of any obligation on the accused to give evidence, and the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution’s proofs and is not to be used as a make-weight.

May we then contrast what is said in that judgment with what occurred in the summing-up in this case. Can we take your Honours to page 43 of the application book. Your Honours will see in the first full paragraph on that page her Honour states:

Mr Surrey is not obliged to give evidence . . . And there might be plenty of reasons –

and goes on to illustrate such reasons. Then at about line 38 the direction is given:

in the absence of any such explanation you might feel you can more readily draw the inference that the Crown invites.

Now, that – and we will return to this point shortly – is the only context which is given to the micro-Weissensteiner direction which her Honour agreed to give.

In New South Wales in R v Macris (2004) 147 A Crim R 99, which is part of our authorities – we will not take your Honours specifically to it - the New South Wales Court of Criminal Appeal adopted a strict approach to this central and important point of a criminal trial, namely directions to be given where an accused does not give evidence. The Court of Appeal in Queensland, in our respectful submission, in this case has taken a significantly different route. In particular, the Court of Appeal in this case has specifically eschewed the direction that an accused’s silence may not be used as a makeweight or to strengthen the evidence by the Crown in assessing whether the prosecution has proved its case beyond reasonable doubt.

That appears, in our submission, in paragraphs [28] and [36] of the judgment of the Court of Appeal, the principal judgment being that of Justice Jerrard. In paragraph [28] his Honour agrees with an earlier judgment by Justice White about using the term “make-weight”, and in paragraph [36] at the bottom of page 99 of the application book his Honour states that in future – or so we would respectfully read his Honour’s judgment – such an observation or direction is not required in trials in Queensland.

McHUGH J: But, Mr Byrne, what you have to face up to in this case is – the grant of special leave is discretionary, and if the Court is of the view there is no miscarriage of justice, even if directions are defective, then it is a strong reason for refusing to grant leave. This, as you concede, is a very strong Crown case. Indeed, it would be difficult to imagine a stronger case. It is an extraordinarily strong Crown case. Given the evidence in the case, the complaints you make seem almost trivial.

MR BYRNE: We cannot shrink from the state of the Crown case, your Honour, and we do not seek to. All we can say is that clearly, as your Honour puts to us, this is not a case of miscarriage of justice. We cannot say the applicant suffered a personal miscarriage of justice, given the strength of the Crown case. What we do say is that the Court of Appeal, in reaching its conclusions, has departed, we would say respectfully, substantially from what is required in directions - - -

McHUGH J: Well, in another case it may be appropriate to grant leave if directions were given similar to those that were given in this particular case; in a case where there was a very real chance the accused would be acquitted. But it really is – correct me if I am wrong – but reading the application book, one could not see how the accused could ever be acquitted. The case for the Crown was so strong that even if the judge had failed to direct the jury on proof beyond reasonable doubt you would wonder whether it called for intervention by this Court. It is a very strong case. No one would be more familiar with criminal cases than you, Mr Byrne, but in my experience I think it is as strong a case as I have ever seen – circumstantial anyway.

MR BYRNE: That was our point below in the Court of Appeal, but one wonders against that background why the Crown even sought to - - -

McHUGH J: Exactly.

MR BYRNE: - - - bolster the case by micro-Weissensteiner and Edwards.

McHUGH J: Yes.

MR BYRNE: It was not a case that needed such directions, and they have caused, we say, a dislocation in the relevant law in that area unfortunately because it was not necessary to be done.

CALLINAN J: Mr Byrne, you would not have a great deal of trouble persuading me on your point, in view of what I said in Azzopardi and RPS, which goes on inconsiderably further than the others.

MR BYRNE: Quite so.

CALLINAN J: But I have to say, Mr Byrne, this is a compellingly strong case against your client. It would be futile to give special leave the expense and time taken in pursuing an appeal that I just do not think has any prospect of success. It is not in anybody’s interest – not even in your client’s, in a sense.

MR BYRNE: It would be difficult to submit there would, even if that course were followed, be a different result at a retrial, even without these directions, but our submission is simply on those directions. If the Court please.

McHUGH J: Thank you, Mr Byrne. The Court need not hear you, Mr Copley.

We are of the view that, having regard to the overpowering strength of the Crown case, it would be futile to grant special leave to appeal because ultimately, given the strength of the Crown case, this Court would dismiss an appeal on the ground that no reasonable jury could have failed to convict the accused, despite any misdirection that may have occurred.

AT 11.30 AM THE MATTER WAS CONCLUDED