Fournair v The Queen [2005] HCATrans 756 (9 September 2005)

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Fournair v The Queen [2005] HCATrans 756 (9 September 2005)

Last Updated: 27 September 2005

[2005] HCATrans 756

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M59 of 2005

B e t w e e n -

JOSEPH FOURNAIR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 SEPTEMBER 2005, AT 11.47 AM

Copyright in the High Court of Australia

MR D.A. DANN: If the Court pleases, I appear on behalf of the applicant. (instructed by Robert Stary and Associates)

MS C.M. QUIN: If the Court pleases, I appear on behalf of the respondent. (instructed by Solicitor for Public Prosecutions)

KIRBY J: Yes, Mr Dann.

MR DANN: Thank you, your Honour. The ground of appeal to be relied upon by the applicant, it is not the intention to focus on the admissibility of the evidence set out in that ground, what is intended is to focus on what is submitted was the clear requirement for appropriate directions to the jury as a consequence - - -

KIRBY J: Where did the Court of Appeal deal with this point? You have listed a whole long series of cases which I have not actually had time to read but which you say support the proposition that if the evidence of a co-accused is used by the Crown the judge must give a direction to the jury as to the way in which they use that evidence. That is the linchpin of your argument, as I understand it.

MR DANN: Yes, if the plea of guilty - - -

CALLINAN J: Is that at the foot of 219, Mr Dann?

KIRBY J: It seemed to have been touched on but lightly in the Court of Appeal.

CALLINAN J: Yes, and there was not an application for a redirection at the trial; is that right?

MR DANN: That is correct.

KIRBY J: But, as Justice Callinan and I said in Gipp, when the matter is still before the judicature of the nation, it is still open to be taken.

MR DANN: Yes, and I will address that difficulty. It is acknowledged it is a difficulty for the applicant in terms of the granting of special leave but, in my submission, it is not an insurmountable difficulty. The point was squarely raised in the Court of Appeal and it is, in fact, because of the approach adopted by the Court of Appeal that the justification for special leave is in fact - - -

KIRBY J: Perhaps I read the Court of Appeal reasons a bit too quickly, but if they did deal with this point it does not seem to have been the main point you were arguing in the Court of Appeal. It seems to have been touched on very briefly, whereas here it looms as the great iceberg for the Titanic of the Crown.

MR DANN: Reflecting on it, I put it as my best point in the Court of Appeal because of the weight of authority that supported the point and the Court of Appeal, with respect, just failed to deal with that line of authority at all. It might not have been listed as ground No 1 - - -

KIRBY J: Can you tell me this, what would have been the extra direction that would have been given by the trial judge who did give directions on the use of inconsistent past statements? What would have been the greater and wider and more helpful directions that would have been given in this case by referring to how the evidence of a co-accused was to be used?

MR DANN: Firstly, it is the plea of guilty of the co-accused – that is the first point – so the direction needs to be, “You have heard evidence in this case that Ms Staples, the co-accused, has pleaded guilty to the same offence to which Mr Fournair is facing trial. You are not permitted to use that evidence of the plea of guilty in proof of his guilt in respect of that same offence.”

KIRBY J: I understand that. That was not said by the trial judge?

MR DANN: No.

KIRBY J: What else?

MR DANN: Emerging with the evidence of the plea of guilty came before the jury evidence that in that plea of guilty of Ms Staples the prosecution case was that she was, in fact, acting in concert with the applicant, that the sentencing judge, the judge - - -

KIRBY J: The prosecutor suggested in cross-examination on Ms Staples that she had, as it were, reneged on the basis on which she had agreed to plead guilty but in her statements she had inculcated your client, but now when she got into the trial she was trying to exculpate him and that therefore she was a suspect witness.

MR DANN: What was put was that on her plea the prosecution had opened her plea on the basis that she had acted in concert with Mr Fournair, the applicant, and that her counsel on her plea did not argue with that proposition. At various times he seemed to accept that proposition. So it was being put as an argument, it seems, that she had accepted through her counsel on her plea that it was being presented on the basis that she was acting in concert with Mr Fournair. What was also put was that the sentencing judge had come to a finding that the sentencing judge was going to sentence Ms Staples on the basis that she had acted in concert with Mr Fournair. So that was before the jury in his trial as well without any direction at all.

KIRBY J: Apart from saying, “You can’t use her plea against the accused”, what else would the judge have said, in your submission, in accordance with the authorities you have referred to?

MR DANN: Firstly, it relates to the plea of guilty, which I have taken the Court to; secondly, any comments by the prosecutor that were before the jury from Ms Staples’ plea; any comments of the sentencing judge; any finding as to the sentencing judge was just irrelevant for the purposes of Mr Fournair’s trial - - -

CALLINAN J: Were the findings of the sentencing judge before the jury though?

MR DANN: Yes, because in the course of the cross-examination what had been put to Ms Staples, “On your plea here is the judge saying to your barrister that I am going to move to sentence you on the basis that you were acting in concert with Mr Fournair” - - -

KIRBY J: And therefore not alone responsible for the injury to Jessica?

MR DANN: Yes.

KIRBY J: “That therefore that was the premise of your sentence and now you are reneging.”

MR DANN: Yes, because in the trial she was giving evidence that she was responsible alone for the injury to Jessica and that the applicant, Mr Fournair - - -

KIRBY J: It was legitimate for the Crown to show this is inconsistent with prior statements and it is inconsistent with the way in which she had previously been sentenced. So it is consistent, but you say that on the second part of that the judge has to give directions to the jury as to the way they can use this.

MR DANN: Yes, I have conceded - - -

CALLINAN J: Mr Dann, do we have in the book that cross-examination by the Crown to which you referred?

MR DANN: Yes.

CALLINAN J: I wonder if you can just give me the reference to that please, when the judge’s remarks and findings were introduced.

MR DANN: At page 71 of the application book which is listed page 760 of the trial transcript at line 24:

Then Her Honour then said: “That is the Crown case, if we can put it this way – addressing your counsel, that those injuries that I have been presented with on the photos and the material are the injuries that are the result of a course of conduct in which both your client and the co-accused, that is Mr Fournair, engaged and it will be on that basis that I will be moving to sentence.” Your barrister then said: “Yes, I accept that”?---Yes.

So in that way, with that answer to that question, all of that material - - -

CALLINAN J: That is perfectly orthodox though. Those are admissions or prior statements.

MR DANN: Yes, I have conceded and referred to a case of Gallagher that that type of cross-examination can become admissible in a trial if the evidence - - -

KIRBY J: The danger to which you point is that it can be so devastating that the jury may give disproportionate consequence to what the co-accused does which may have all sorts of different motivations and not concentrate exclusively on the evidence against your client.

MR DANN: There was nothing to stop the jury – I mean, the cross-examination was permissible as an attack on credit of Ms Staples and going to the prior inconsistent statement, that is recognised. But there was no explanation to the jury that that was what it was for and there was nothing to stop the jury, in the applicant’s case, using any of this material in proof of his guilt.

CALLINAN J: In this State the Evidence Act does not make that sort of inconsistent statement type of cross-examination admissible for other purposes. It does, for example, in Queensland and I think it does under the Evidence Act (Cth) now too. Is there any similar provision in Victoria as evidence of the truth of the facts and not merely going to credit?

MR DANN: No, not that I am aware of and certainly that has not been suggested up until this - - -

KIRBY J: What is the best case in your list of cases? You have a catalogue of about seven of them on page 233 that you say holds to the line that the judge must, in these circumstances, assist the jury and direct them on the use that can be made of such evidence. What is the best statement of the principle?

MR DANN: Doing it as briefly as possible, Burnett is the Western Australian case:

where evidence of a plea of guilty of a co-offender is admitted the jury must be very specifically informed of [its] limited use –

I could take the Court to cases across a number of States that are consistent with that approach.

CALLINAN J: Does that approach apply in the sort of situation here? Who called the co-accused?

MR DANN: The defence.

CALLINAN J: So that the Crown was in the unusual position, or slightly unusual in this sort of situation, of being able to cross-examine. More often than not, there is a plea of guilty and the Crown will call – not more often than not, but often the Crown will be calling the accomplice who has pleaded guilty and does not cross-examine, but this is a witness who is tendered by you on the issue of guilt.

MR DANN: This has also arisen though when the Crown have called a so-called accomplice and the accomplice has reneged on what - - -

CALLINAN J: Yes, that may be so. I can see perhaps a greater need for it in that situation, but in this case the accomplice is your witness and tendered by you on the issue of guilt. Is that right, tendered as a witness by you to try to exculpate completely your client?

MR DANN: Yes, that is right.

KIRBY J: You must have anticipated the truck that was coming down the road at you by tendering this witness.

MR DANN: The Court does not have the benefit of all of the transcript, but there was preliminary discussion about what may happen and, indeed, the witness at one stage wanted to have indemnity and wanted to be excused from giving evidence. There was a lead up to this and, yes, this cross-examination had been foreshadowed, but it does not solve the problem - - -

KIRBY J: It is a very brief little case you have read to us from Western Australia. Is there no case that explains the rationale for a more general principle because of the great risk of predetermination of issues against one accused without proper regard to the limited use of the evidence of another?

MR DANN: It all starts with the English case of Moore which is at page - - -

CALLINAN J: Yes, but if you look at what Lord Chief Justice Goddard said there at the foot of page 53:

When two people are indicted together for a criminal offence and one pleads Guilty and the other does not, it is the commonest thing in the world to tell the jury, as was done in this case, “You must not pay any attention to the fact that the other man has pleaded Guilty.” Even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded Guilty, but the fact that he has pleaded Guilty is no evidence against the co-prisoner.

That is a different situation from yours. I am not saying that something does not have to be said to the jury and that care has to be taken, but anybody with any forensic experience knows that to call accomplices, either for the Crown or the defence, can be one of the most dangerous things you can do.

MR DANN: I accept that, yes.

CALLINAN J: But your situation is different. You are tendering this witness. There is all this evidence which can be brought out from her which is highly prejudicial to you, but you take those chances. It is not like the person pleading guilty in the presence of the jury or the accomplice being called by the Crown. I do not know whether you can readily transpose the conventional situation to this one.

KIRBY J: Is there a case where the situation was analogous to the present or are they all the usual case where the Crown seeks to call the co-accused?

CALLINAN J: Or there has been a plea of guilty in the presence of the jury or for some other reason the judge may have to tell. Sometimes the plea will be changed in the middle of the proceedings and the accomplice pleads guilty and the judge then has to tell the jury something about why somebody has disappeared from the dock.

MR DANN: In the authorities that I rely on I do not recall it being a situation where the defence have called the witness. The usual situation within these authorities is a situation where the prosecution call the witness. There are occasions then when the witness is made hostile and then subject to cross-examination by the Crown.

CALLINAN J: Again, a very different situation really.

MR DANN: The background is different and that is conceded as to how we get to the point where the evidence is before the jury, that is the different background, but these cases are indicating that it is mandatory to give the direction, that that is required. A distinction is not drawn as to the manner in which the evidence gets before the jury; it is where the evidence is before the jury the direction is required.

As I referred to in the outline, the New South Wales case of Cowell puts that requirement in mandatory terms, so does the Western Australian case which I just referred the Court to of Burnett which followed Romeo; in South Australia there is support for that proposition as well in Fowler; I have referred your Honours to the Victorian case of Fountain and Tootell which applied Burnett and Cowell in circumstances where it was said there is a significant possibility that the jury may make improper use of the evidence that the co-offender had pleaded guilty to the same offence as those facing trial. In the light of that line of authority it is submitted that the trial judge in the applicant’s case was required to give a direction to the jury as to the use they could make of the plea of guilty of Megan Staples.

The approach adopted by the Court of Appeal, putting it as succinctly as I can, it is my submission on behalf of the applicant that there was no justification for the approach adopted by the Court of Appeal and that that approach is in fact in direct conflict with that long line of authority. What the Court of Appeal were in effect essentially saying was that it was sufficient that there is a direction as to answers to the questions being the evidence and it was sufficient that there was a general direction about prior inconsistent statements.

Now, it is my submission that wholly failed to deal with the difficulties that the jury faced in having to deal with this evidence because it was by virtue of the answers to the questions that the material got before the jury in the first place. The direction as to prior inconsistent statement was not related in any way to this evidence at all. Those directions did not deal with the evidence of the judge’s finding whatsoever - - -

CALLINAN J: I can understand why counsel might not have wanted a direction of the kind that you say is appropriate. If you look at the judge’s summing-up at 190 and 191 – and really she was such an unreliable witness, so unreliable, and counsel might well have taken the view the less said about her or about what she said or the effect of her plea, the better.

MR DANN: In my submission, this same situation occurred in the Victorian case of Fountain and Tootell where the trial counsel had not asked for the direction that was held to be required in the circumstances.

CALLINAN J: Yes, but this may have been a tactical decision and I can well understand why that tactical decision might have been taken.

MR DANN: I am asking your Honour to accept the fact it is much more probable, in fact it was an oversight, not only an oversight by the trial counsel of the applicant but an oversight by the prosecutor and an oversight by the trial judge because the cases do not discriminate. They say that where the - - -

CALLINAN J: Yes, but you have not pointed to a case of this kind where the witness has been called as a witness on the issue of guilt by the defence. Is there any case in which that has happened? I think that might raise a different question entirely.

MR DANN: In my submission, it does not. The problem is still before the jury as to what they do with the evidence. This was very damaging and very prejudicial evidence. It was an omission - - -

CALLINAN J: That is what happens when you call some witnesses. It is the chance you take. You have to take the bad with the good with witnesses.

MR DANN: Within the context that the accused person is entitled to a trial according to law with such directions.

CALLINAN J: Exactly, and the prosecution is entitled to a fair trial, and that might involve demonstrating, as happened here, that almost from beginning to end her testimony at your client’s trial could be characterised not unfairly as lies.

MR DANN: That is the attempt that the prosecution sought to make.

CALLINAN J: Well, the contradictions – she was contradicted on practically everything she said when confronted with undeniable facts to the contrary.

MR DANN: This whole aspect of the conduct of her plea relied on the jury accepting that it was her counsel on instruction adopting what was said or agreeing with what was said by the trial judge and the prosecutor. There
was a difficulty in that very situation in itself, but having had the evidence before the jury, it is my submission that in fact what was needed was a very, very specific direction as to the use that could be made of the evidence and that is what the cases in unity - - -

KIRBY J: The cases were in other circumstances, but I would myself accept that there may well be circumstances where a direction would be proper and appropriate. But it was not sought, there is no case which is analogous to it and, as Justice Callinan has pointed out and as the Crown urges on us, there were very good strategic reasons for steering clear of this witness. That may have explained why, in the context of the trial, no redirection was asked for.

MR DANN: In my submission, this Court should be slow to have any sort of comfortable satisfaction if that is the reason why no direction was called for and, in fact, should have regard to the clear conflict in approach from the Court of Appeal to those other cases. They are the matters at this stage, your Honour.

KIRBY J: Thank you, Mr Dann. The Court does not need your assistance, Ms Quin.

We are not convinced that the point raised by the applicant, that the trial judge should have directed the jury on the proper use that might be made of the co-accused’s separate plea of guilty and her evidence on that plea, led to a miscarriage of justice in this case.

We do not say that a direction should not, in some cases, be given concerning the use that the jury might make of such evidence. Sometimes such a direction will be proper and sometimes it may be required. However, in this case, it was the applicant and not the prosecution that called the co-accused to give evidence suggesting his exculpation. Trial counsel did not seek re-direction along the lines that are now urged on this Court. There may well have been reasons for this omission in the context of the entire trial. The prosecution case here was a strong one. We are not convinced that a miscarriage of justice has occurred.

Special leave to appeal to this Court is refused.

AT 12.10 PM THE MATTER WAS CONCLUDED