Hinschen v The Queen [2008] HCATrans 336 (30 September 2008)

Last Updated: 1 October 2008

[2008] HCATrans 336

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B21 of 2008

B e t w e e n -

BEAU ERNEST HINSCHEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON TUESDAY, 30 SEPTEMBER 2008, AT 9.54 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC: If it pleases the Court, I appear for the applicant. (instructed by Robertson O’Gorman)

MR A.W. MOYNIHAN, SC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIRBY J: Yes, Mr Callaghan.

MR CALLAGHAN: Your Honours, in Melbourne v The Queen (1999) 198 CLR 1 this Court considered the obligations of the trial judge when evidence of an accused’s good character is led in a criminal trial.

KIRBY J: I remember the case well.

MR CALLAGHAN: Yes. Your Honour was in the minority. The applicant contends that the judgments of the majority in that case leave unanswered - - -

KIRBY J: Can I just ask, reading your submissions, as I understand it, you do not challenge the ratio decidendi of Melbourne, however, you say that there is a nuance in Justice Hayne’s opinion in that case which you seek to have this Court flush out in this matter if special leave were granted. Is that a correct understanding?

MR CALLAGHAN: That is so.

KIRBY J: You do not want to go back to the matter on which Justice Callinan and I dissented?

MR CALLAGHAN: No, we do not have to in order to succeed in this application, in our submission.

KIRBY J: That is what I understood was the way you put it.

MR CALLAGHAN: Yes. The point the applicant makes is that judgments of the majority leave unanswered questions which are raised in this application and they are raised in this case because evidence of the accused’s good character did indeed have an immediate and obvious connection with the issues in the trial. That connection was established by reason of the manner in which the case was litigated. That, in turn, is well rehearsed in the outlines and in the judgment of the Court of Appeal. I will not go over that unless the Court requires it, suffice to say that the character evidence was in this case to adopt the phrases used by the Court of Appeal, much emphasised and doubtless important. Nevertheless, the evidence was not the subject of any direction from the trial judge.

KIRBY J: Now, there were the directions, or you could really describe them as questions, which are found on page 90 of the application book, are they not, 89 and 90, when the trial judge said, summarising some of the evidence of good character:

Well, how does that affect your assessment of the evidence . . . Well, how does that impact, if at all, on your assessment?

Your complaint, as I understand it, is that there is neither a direction to take it into account on your client’s side nor is there even a comment that of course the accused is entitled for you to take into account in his favour the evidence of good character that was called.

MR CALLAGHAN: That is so. Your Honour has isolated those points in the respondent’s outline which, in turn, relate back to page 35 of the application book. As to that passage in which the judge does canvass the topic of the character evidence, can I make these points, that everything said by the judge in that regard - - -

KIRBY J: Your lights have not gone yet, not from this end.

MR CALLAGHAN: I will keep going.

KIRBY J: I will protect you, Mr Callaghan.

MR CALLAGHAN: Thank you, your Honour. Everything said by the trial judge has to be read as being governed by that part of his summing-up which appears in the application book at page 24, lines 1 and 2, that is to say, everything that was said was said under the umbrella of being one of the rival contentions of the parties and in - - -

KIRBY J: Could I ask how long did this trial last? What was the lapsed time of the trial?

MR CALLAGHAN: The summing-up was on day 10.

KIRBY J: I see.

MR CALLAGHAN: There were gaps.

KIRBY J: And the jury was out for a day, were they not, and then they came back?

MR CALLAGHAN: A day, yes.

KIRBY J: Then they asked the redirection and then they were out for a further hour and a quarter?

MR CALLAGHAN: That is so.

KIRBY J: Yes.

MR CALLAGHAN: Just to put that passage at page 24 in context, can I take you back to page 6 of the application book, lines 1 to 10? Those passages must be taken as governing everything that was said by his Honour on this topic, that is to say, that they were arguments which could be taken into account, but the extent to which they did was entirely up to them. What ought to have been an - - -

KIRBY J: You were not trial counsel, as I understand it?

MR CALLAGHAN: That is so, your Honour.

KIRBY J: And no application was made for redirection or, more specifically, direction by trial counsel?

MR CALLAGHAN: No, and, indeed, his Honour, the trial judge, was silent on this subject.

KIRBY J: And both trial counsel raised the issue of good character in their addresses to the jury.

MR CALLAGHAN: They did, and it is the way in which it was dealt with by the Crown Prosecutor, to which I will now turn, because it meets the point which is fairly made against the applicant, and that is the argument that the respondent makes that there is no reason to suspect that the jury would not have understood the effect of the direction which ought to have been given, or which could have been given. The most convenient method of addressing this is at application book, page 56, paragraph 50 in the judgment of the Court of Appeal where is reproduced the submission made by the Crown Prosecutor as to the manner in which the character evidence should be addressed by the jury.

KIRBY J: Which paragraph?

MR CALLAGHAN: Paragraph 50. The prosecutor reminded the jury that they had heard about what a good boy the applicant was and then immediately shifted the focus of the argument to what he described as the applicant’s handiwork and, as your Honours will appreciate, there was graphic evidence of the dreadful injuries which had been suffered by the deceased. The issue, in the applicant’s submission, could not have been avoided more neatly. The character evidence had to be used by the jury in the first place in their assessment of the probability as to whether all the injuries were the applicant’s handiwork. This is where the true position in law had to be inserted into the trial process and it never was.

Now, if counsel, appearing with the authority of the Crown Prosecutor and addressing this most important issue in the trial, articulated a submission which did indeed, in the applicant’s submission, offer to the jury the services of a false chain of reasoning, then that does indeed raise the need for the jury to be told the true position in law. It is here where we come directly to the issues which make this case a suitable one for special leave to be granted because the applicant submits that the need for the true legal situation to be made clear by the trial judge will inevitably, will always arise when counsel who are addressing submissions to the topic of character evidence make arguments which are at odds with each other, which compete against each other, contradict or even, to use the word of the Court of Appeal, discount the worth of evidence of this nature.

It is submitted on behalf of the applicant that this is either the clear effect of Melbourne by reason of the passage in the judgment of Justice Hayne to which we have made specific reference or, if it is not the effect of Melbourne, it is one of the issues which is left open by that case and which can now be clarified. Your Honours will appreciate that the passage in Justice Hayne’s judgment to which I refer is reproduced at page 79 of the application book and I do not need to go over that. I can refer back, though, to - - -

KIRBY J: Certainly if the prosecutor were to attempt to mislead the jury into either the weight to be given to character evidence or the weight not to be given to it, then, as I understand the majority view and the Court’s ruling in Melbourne, that would enliven an obligation on the part of the trial judge to give directions as to the positive use that could come from the character evidence. But can you help me again? I just do not see how that passage that is summarised in paragraph 50 on page 56 really amounts to anything more than a comment by the prosecutor that he has been proved to have been a good boy but we are asserting that he did not become a good man. That is not really an elicit or impermissible comment, is it?

MR CALLAGHAN: Except that the process that the jury is invited to embark upon there is to assume that he has not become a good man because he was responsible for all of the injuries suffered by the deceased. That is the question which the jury had to decide after first taking into account the character evidence and using that in their assessment of the probability of whether or not he did inflict all of those injuries. In other words, the prosecutor is asking there, the jury, to assume that which has to be proven, to assume that because he was the one who did all of the handiwork, as it is described, they can discount the effect of the evidence which suggested that he could not have done that other than with a gun at his head. The very fact that the submission could be articulated in that fashion gives rise to the concern that we say would have been addressed by a clear direction on the topic from his Honour the learned trial judge.

This is, in the submission of the applicant, the effect of what Justice Hayne said in Melbourne and if that is right, then it was, to Justice Hayne’s mind, at least, mandatory in the situation for a direction to have been given. If, however, that statement of Justice Hayne is to be confined in the manner suggested by the Court of Appeal at page 59, paragraph [63] of the judgment, that is, confined to the situation where there is a mis-statement of the law, then we submit there is a need for the Court to address a serious gap in the law which is left open by Melbourne, that is to say, a gap which acknowledges that there is a discretion as to whether or not a trial judge should direct on this topic but it is one which is circumscribed by a requirement the direction must be given in cases where counsel make competing submissions about the uses available for this evidence. This injunction is not to be restricted to cases in which those competing submissions are couched in terms of legal argument but extends to cases wherever, by reason of submissions of counsel, the jury may be left in some doubt as to the use which could or should be made of - - -

KIRBY J: We do have in this case, by chance, the indication from the jury’s question as to the way in which, in the end after a day’s deliberation, they were focusing their attention and on that question, that is to say, whether the so-called first confession was true, the trial judge gave an extremely clear and very brief and very, well, accurate direction to the jury. No objection was taken or is taken to that. Now, given that we have that insight into what ultimately became critical, how do you advance the issue of good character when it does not appear as though that is what the jury were focusing on in the end, after a day’s deliberation?

MR CALLAGHAN: That is so, your Honour. The jury was focusing on precisely the one question which they had to ultimately answer. We have no issue the way the critical question was framed. It is the process by which the jury went about answering that question which we have an issue with because it is in the process by which the jury got to that point - - -

KIRBY J: You say that when they came to that critical question, “was the first confession true or not”, your assertion is the accused was entitled to have put into the scales at that point, “but of course you will take into account in the accused’s favour the fact that he comes before you as a person of proved good character”.

MR CALLAGHAN: He was entitled to have that taken into account at some point prior to then, yes. We do not contend, necessarily, that the judge had to remind them of - - -

KIRBY J: The problem with that is that it does sound awfully like the minority reasons in Melbourne. I mean, I am very sympathetic to this view. I do not, myself, still see why, when you come to the judgment seat, you are not entitled to say, “but take in my favour as to my truthfulness and as to my guilt the fact that I come before you as a person of proved good character” and that is what I thought was the law, but Melbourne said, no, that there is no obligation to give that direction.

MR CALLAGHAN: It did say that, but as the point has been made, whilst Melbourne allows that there is a discretion, it is not a completely open textured one and if it is, need not remain so but may be the subject of some circumscription if it is not - - -

KIRBY J: Is there a tension between the decision of the Court in Melbourne and the earlier decision in Murphy?

MR CALLAGHAN: Murphy is not one of the authorities to which we have referred, your Honour.

KIRBY J: The case involving the former justice of this Court, Justice Murphy.

MR CALLAGHAN: Yes. No. I am familiar with the case but I have not addressed the issues raised therein.

KIRBY J: Anyway, you are not seeking to reopen Melbourne, you are simply seeking to nuance it?

MR CALLAGHAN: That is so.

KIRBY J: Yes. That is a prudent submission, I suppose, given that Melbourne is a relatively recent decision of the court, 1999.

MR CALLAGHAN: Yes. But it may be that the effect of Justice Hayne’s judgment is to govern the situation with which we are currently concerned and if that is so, then it is simply an exercise in clarifying that and correcting the Court of Appeal in its interpretation of that passage. If that is not so, then the situation is open for the Court to clarify or, as you say, add a nuance to the judgment in Melbourne.

There is a second limb to the argument and a further error in the Court of Appeal which does invite the attention of this Court. The error is
disclosed in the reasons of Justice Fryberg, with whom Justice Lyons agreed. Perhaps the most convenient starting point is to go to the application book, page 65 at paragraph [88], where his Honour suggests that the topic of character evidence needs to be governed by a two-tiered approach, that is to say, that it is necessary for a finding of good character to be made on the basis of evidence of good character, that there is a distinction between the two concepts and that that is the manner in which this sort of evidence is to be addressed.

This raises immediate concerns for the Court as to how a direction to the jury is now to be framed in the light of this judgment of two justices of the Court of Appeal. Is there now to be a direction that good character evidence is to be approached in a two-step process, that there is to be a finding? If so, to what standard and, if so, as to which particular aspect of character? This is especially concerning in a case such as this where the aspect of the character of the applicant with which the court was concerned was really whether or not he had been violent in the past and not simply as to whether he had had no previous convictions or told lies.

The mischief in his Honour’s approach is revealed as we go further into his reasons and, given the time, the plain effect of his Honour’s reasoning is that for the purposes of the first part of this exercise the jury can take into account evidence referable to the offence itself and ancillary events in determining whether or not they could make a finding of good character before they then go on to use that finding. The applicant’s submission is that this approach is fraught. Character evidence can be used to determine the probability of an accused committing an offence in the first place, but if evidence about the offence itself and related events can be used to defeat a finding of good character, then the exercise becomes a perfectly circular one and not one, in the applicant’s submission, which can be the subject of a meaningful direction to the jury.

His Honour demonstrated the impossibility of his position when he went on to hold that it might, under this scheme that he proposed, be necessary to then direct a jury about a finding of bad character. The whole approach is, in the applicant’s submission, unworkable and trial judges attempting to follow it will find it so. The Court should intervene now to prevent this approach from gaining currency. Those are my submissions.

KIRBY J: Yes, thank you, Mr Callaghan. Yes, Mr Moynihan?

MR MOYNIHAN: Your Honours, it is my submission that this case involves only the application of the well-settled principles in Melbourne to the facts of this case. The central issue in the trial was whether the jury was satisfied that the applicant’s confession that he was procured by Jobling and acted alone in the killing was true.

Justice Fraser was correct to find at paragraph [2] of the reasons that a direction as to the use of the good character evidence was not required in every case applied in the majority judgment in Melbourne. No direction was sought below and Justice Fraser was correct to find at paragraphs [63] to [67] of the judgment that a direction was not mandated because the Crown did not mis-state the law or deny the evidence could be used by the jury to determine that central issue. In fact, the Crown did not contest - - -

KIRBY J: Mr Moynihan, I have to discipline my mind that I do not revert into the error of my minority view in Melbourne, but when you look at the actual passages that are handily summarised in your submissions on page 90 of what the judge actually told the jury, he did not really tell them anything at all, did he? He said:

Well, how does that affect your assessment of the other evidence . . . Well, how does that impact, if at all, on your assessment?

He asked then a question and gave no direction or even comment. Is that within the requirements of the majority opinion in the ruling of the Court and the holding of the Court in Melbourne?

MR MOYNIHAN: Your Honour, that comment to which you refer has to be read, as Justice Fraser said at paragraphs [52] and [53] of his reasons, in terms of the judge’s direction at record 13 point 1. There your Honours can see that the judge directed the jury to consider the defence evidence, including the character reference and in determining whether the central issue of whether the confession was true. So there is a specific direction that the jury were to have regard to the evidence.

KIRBY J: There is no actual specific reference there at 13 point 1 to what, if anything, the jury were to do with the evidence of character, is there?

MR MOYNIHAN: No, but that is the comment which your Honour referred to earlier relates because there his Honour is directing the jury they must take the evidence called on behalf of the defendant into account in determining the central issue or whether they have a reasonable doubt about it and then the comment which your Honour referred to. Justice Fraser was correct to find in relation to that at paragraph [71] that that drew the jury’s attention to the entitlement to take that evidence into account as inconsistent with the brutality of the offence and the jurors were able to contrast it with that which was known of Jobling at paragraphs - - -

KIRBY J: But what if jurors come into the court and say, “Well, he would say that, would he not, he is on trial and his parents would say nice things, would they not, because they are naturally going to support their son, and these other witnesses would say that, would they not, because they are friends”? I mean, there is nothing put into the scales that says, well, if people come to court and they are of previous good character you have to give that weight on the side of the accused.

MR MOYNIHAN: That is why it is important in this case, your Honour, that the Crown Prosecutor below did not contest the good character evidence. He did even cross-examine the witnesses that were called by the - - -

KIRBY J: All this sails past what the jury had to do with character evidence.

MR MOYNIHAN: Well, except that the Crown restricted its case to that it said that it would not put any other attribute on the applicant other than for the jury to look at what he said and did and in doing that, the Crown said no more than that it was legitimate for the jury to be more concerned with the man he had become to determine by the evidence of what he had said and done both before and after the incident.

KIEFEL J: Mr Moynihan, do you say that because the central issue was the acceptance or not of the confession, that that gave parameters perhaps to the exercise of discretion?

MR MOYNIHAN: Quite, your Honour, because firstly it is accepted by the applicant that he was present, at least with Jobling, acting under compulsion. That being accepted, then the import of the good character evidence did not bear very heavily on the issue of whether he acted alone. Secondly, it could have disadvantaged the applicant because it would have diverted the jury’s attention from firstly scrutinising Jobling’s alibi or scrutinising Jobling’s reasons for being involved in the attack alone or, finally, scrutinising the inconsistencies in the critical first confession. That is why it may have been a tactical decision by counsel below not to ask for the directions sought.

So that on that critical issue there are very substantial reasons why the direction was not sought. Both Justices Fraser and Fryberg made it very plain that it would have also been difficult to overcome the disparity between the evidence called to prove good character and the evidence which demonstrated what his true character was by what he had said and done after the event.

In relation to my friend’s complaint about Justice Fryberg’s reasons, in my respectful submission, Justice Fryberg was not laying down any rule whatsoever. His Honour was merely observing that if a good character
direction were given in the circumstances, it would have probably been necessary to also balance that with a direction as to what the jury could make of the evidence of his bad character. His Honour only used that to inform his Honour’s reasons or decision at paragraph [93] that there were sound tactical reasons for not asking for the direction in this case but, more importantly, that the lack of a direction actually advantaged the applicant. Those are my submissions, your Honours.

KIRBY J: Yes. Anything in reply, Mr Callaghan?

MR CALLAGHAN: Your Honour, the issues cannot sensibly be compartmentalised by reference to what was ultimately the critical question. The critical question was whether the first confession was accurate and reliable. The substance of the first confession was that the applicant acted alone. The character evidence bore directly upon the probability or otherwise that this crime was something that the applicant could have done alone. The issues were intertwined and it is no answer to suggest that the issue was accurately framed ultimately for the jury.

The only other matter in reply is that there is nothing in paragraph [88] of Justice Fryberg’s judgment to suggest that he was doing otherwise than announcing a rule of general application. Those are my submissions.

KIRBY J: In Melbourne v The Queen (1999) 198 CLR 1 a majority of this Court concluded that, where evidence of good character was available in a criminal trial, a direction by the trial judge to a jury on the use to be made of such evidence was not mandatory. Two members of the Court held otherwise. However, the rule is established by the conclusions of the majority.

Thus principle was not challenged in this application, where the accused called character evidence at the trial. Indeed, in this case, trial counsel for the accused did not seek a direction to the jury nor any comment beyond the questions and directions that were put to the jury by the trial judge.

In this Court the applicant seeks to have the Court explore what he calls the “open textured” nature of the decision on the use of character evidence. The character evidence in the case was important and would clearly have been in the minds of the jury. It was referred to by both trial counsel, but its use was left by the judge to the jury to decide.

The ultimate issue that concerned the jury was made clear by a jury question presented after they had been deliberating for a day. It concerned whether the so-called “first confession” of the applicant was truthful or not. Upon that issue the judge gave clear and accurate directions which were not challenged. The jury returned a guilty verdict an hour later.

Given the unchallenged authority of Melbourne, we are unconvinced that an error occurred in the directions given to the jury or that those directions occasioned a miscarriage of justice to the applicant. Nor do we consider that the other arguments raised by the applicant warrant the intervention of this Court. The case would not involve reasonable prospects of success, were special leave granted. Accordingly, special leave to appeal is refused.

AT 10.24 AM THE MATTER WAS CONCLUDED