Tunja v The Queen [2014] HCATrans 89 (11 April 2014)

Last Updated: 16 April 2014

[2014] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M93 of 2013

B e t w e e n -

TJAY TUNJA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 APRIL 2014, AT 1.01 PM

Copyright in the High Court of Australia

MR D.A. DANN: If the Court pleases, I appear on behalf of the applicant. (instructed by Melasecca, Kelly & Zayler)

MR B.F. KISSANE: If the Court pleases, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Vic))

CRENNAN J: I think you need an extension of time, do you not, Mr Dann. Is that right?

MR DANN: Yes, that is correct, we do seek that.

CRENNAN J: That does not appear to be opposed?

MR KISSANE: No, your Honour.

CRENNAN J: Yes, you have that extension.

MR DANN: If the Court pleases. Your Honours, this application concerns the approach taken by the majority in the Court of Appeal to the substantial miscarriage of justice question that arose for consideration. It is clear that all three judges in the Court of Appeal found that there had been an error in the trial.

CRENNAN J: Did they find that, or was that conceded at the outset?

MR DANN: It was, in a sense, in my memory of it a concession that developed in the course of discussion.

CRENNAN J: I ask that because from page 144 of the application book, paragraph 16 of the respondent’s submissions, the respondent for the purposes of this decision in any event:

accepts that the impugned direction . . . ought not have been given -

MR DANN: Yes.

CRENNAN J: What occurred to me was it was possible argument was conducted in a similar fashion in the Court of Appeal. I am putting that to you rhetorically.

MR DANN: As to whether there was consideration as to whether it was an error at all, rather than it just being conceded. Is that what your Honour is putting to me?

CRENNAN J: I am asking you about the basis on which it was conducted in the Court of Appeal below because you opened your submissions by saying it was found by the Court of Appeal that there had been a misdirection. What I have been trying to explore with you is whether or not that was the accepted framework within which the Court of Appeal was asked to consider the matter, replicating or mirroring, if you like, the submission in paragraph 16 of the respondent’s written submissions here.

MR DANN: Essentially, that came to be the framework in which this was considered, your Honours.

CRENNAN J: Thank you.

MR DANN: There had been earlier discussion at the earlier stage in front of three other judges of the Court of Appeal as to whether it amounted to an error. At that stage, as I recall it, there was the contention that this was not an error, for various reasons, But as we proceeded through to the next phase, and three different judges of the Court of Appeal – two different judges, one was the same, Justice Priest – that was the framework that developed, that it was more a consideration of, or came to be a consideration of the impact of this particular part of the direction.

There was still argument about whether it was a comment or direction, whether it would have been understood to be a comment or direction. There was still that argument that occurred in the course of the Court of Appeal appearance, and you will see reference to that in Justice of Appeal Priest’s decision. We got to a situation where all three judges - - -

BELL J: All three judges were of the view that it would have been preferable for the judge not to make that statement. The majority concluded that in the context of the summing-up read as a whole, and in light of the issues at the trial, that statement had not occasioned a miscarriage of justice.

MR DANN: A substantial miscarriage of justice, that is right.

BELL J: Their Honours’ conclusion was that it had not occasioned a miscarriage of justice, as I read - - -

MR DANN: The majority.

BELL J: The majority.

MR DANN: Yes, I think that phrase is used for those reasons.

BELL J: Yes. I think it is at paragraph 37 that their Honours in the majority express that – yes, it is application book 112 at paragraph 37, and their Honours describe it as an “impugned statement” and they say it “was not productive of a miscarriage of justice”. On the face of it, no consideration of the principles that have been touched on in Burns v The Queen or Mule v The Queen, as is raised, there is a difference in the court respecting that conclusion, but - - -

MR DANN: That is correct.

BELL J: - - - what is the special leave point?

MR DANN: The special leave point, in my respectful submission, concerns the approach adopted by the majority in the Court of Appeal because essentially what has happened is the majority have focused on the approach of the applicant’s then counsel in the trial, and have come to the conclusion that the truthfulness of the admissions in this particular case but just was not an issue in the trial, became a non-issue in the trial, because of the way the defence had been conducted.

It is my respectful submission, on behalf of the applicant, that if you follow that through, if you follow the way – and I will take the Court to various references – the way the defence case developed and what was sought to be done by way of the defence case and the evidentiary framework of this trial that the truthfulness of the admissions had to remain a critical issue in this particular case. It cannot be that the approach as a wider matter of principle, it cannot be by reference to what occurred in this trial and this counsel’s approach that that could convert an issue that is otherwise raised on the evidence as it was to a non-issue, for the purposes of the substantial miscarriage of justice question.

BELL J: If one turns to application book 17 and following, where one finds the trial judge’s directions, on more than one occasion the trial judge draws to the attention of the jury the need to be satisfied not only that the admissions were made, but that they were true.

MR DANN: That is correct, your Honour.

BELL J: The Court of Appeal majority’s emphasis was in some degree, in considering the issues that were live at the trial, on the circumstance that this was being fought on the basis that the admissions had not been made, and to that extent, the statement made by the trial judge that is the subject of complaint was not material to the real issues, as it were. But that is not to say that the judge did not correctly and more than once inform the jury that before it could reason to guilt, it had to be satisfied both of the making of the admissions and the truth of the admissions.

MR DANN: Yes, that is true, and that is what happened, and that confirms that everyone saw that as remaining an issue in this particular trial. The truthfulness of the admissions remained a critical issue in this particular trial, and his Honour did give those directions and it is, of course, permissible and necessary for the Court of Appeal to consider the impugned statement or direction in the context of the overall directions. But what we have here, your Honours, is essentially a conclusion that the truthfulness of the admissions became a non-issue in the trial.

In my respectful submission, if you follow through firstly the evidence – the issue was raised on the evidence because you had the applicant alongside evidence of alleged admissions. You had evidence of the applicant telling various witnesses “it was not me that did that stuff. I did not do it. What I said before is not true” - I am paraphrasing at this point, but that evidence was raised, recanting the earlier alleged admissions. So the issue is raised on the evidence.

You then have the defence counsel in his approach - “it is true that there is no express line of argument; well, just consider, ladies and gentlemen, if he did make the admissions” – it was not put in those terms, but what he did in the course of the presentation of the defence case, I can take your Honours just to a couple of passages from the application book, page 329, where he said:

You might recall from my opening that I did ask you, as my learned friend, the prosecutor, did recount to you, I did ask you to take particular attention of the eyewitnesses, the people that were actually there, the people that saw things, the people that heard things, because if that evidence is accepted by you, in my respectful submission to you, you would have to have a doubt about Tjay being the murderer, if you accept those pieces of evidence. It doesn’t matter how many witnesses the Crown would produce and say “he came to me and he said he did this”, it wouldn’t alter that one iota.

At application book 334, similarly, dealing again with this contrast between the eyewitness evidence and the evidence of admissions, line 12:

That evidence is entirely unchallenged. By itself you might think that proves innocence. We don’t have to go that far. The defence merely only need provoke a reasonable doubt in your minds. No matter how many eyewitnesses come to bear – sorry, how many witnesses come to bear that allege confessions made by my client, the girls who were there, and the woman down the road, all saw – well, the woman down the road and Maggie saw three on one –

That is a reference to three other persons named by that particular witness being on the deceased man at the very relevant time, hearing him yelling, no more yelling, seeing blood, seeing the applicant behind that witness at that particular time. It goes on, if I can take the Court to the last passage that I rely on at application book 367:

Remember what Maggie Weir says, “What’s Tjay doing?” “He was standing there behind me doing nothing”, that’s her evidence, her observation, unchallenged. And then when she sees the three assailants on top of the deceased and the deceased stops yelling – where’s Tjay – she’s asked – what does she say, “I don’t know but he wasn’t on the ground”. He’s probably left by that stage or you might think, it’s a matter for you.

So, what the Crown is asking you to do is to accept the evidence of those to whom confessions are supposed to be made, accept that beyond reasonable doubt on two bases (a) it was made (b) it was true, and just ignore the evidence of Maggie Weir and the other eyewitnesses. How can you do that?

The submission, your Honours, is that this is not a case, for example, where defence counsel has expressly disavowed an issue, or by way of discussion prior to the charge said that that is not an issue in this trial, or there has been some discussion between his Honour and counsel in respect of this issue. Far from that situation, in my respectful submission, given the contrast that the defence counsel was seeking to make with the eyewitness evidence and the evidence of admissions, the truthfulness of those admissions remained a central issue. The defence was not confined to merely attacking those witnesses said to have heard admissions, just confined to that. What it was was yes, that was one part of the defence case, but, two, very much the reliance on the eyewitnesses to demonstrate that this accused man, the applicant, could not have inflicted the fatal blow.

To suggest in those circumstances that the approach of counsel has converted an issue that is otherwise raised on the evidence to a non-issue, for the purpose of the substantial miscarriage of justice question, in my respectful submission is attaching an unfair consequence to the forensic position that counsel undertook. It intrudes, in my respectful submission, as is set out in the written outline, into that notion of a fair trial and a judge’s duty to ensure that the applicant received a fair trial.

As this Court recently set out in James v The Queen, which is the case dealing with alternative verdicts which was partially referred to in the course of both the majority judgment and the judgment of Justice of Appeal Priest, that case had not been decided at that particular stage in the High Court; it subsequently has. At paragraph 31, this Court in the plurality said:

Discharge of the trial judge’s role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel –

BELL J: Well, that is pure Pemble, and that is what occurred. The judge more than once directed the jury of the need, before they might reason to guilt on the basis of the confessional material, for satisfaction not only that it was made but that it was true. In issue, Mr Dann, is whether on the strength of one statement discountenanced by the High Court in Mule, one would say this trial miscarried.

MR DANN: That is correct. Just to take up what your Honour has just put to me. What we have is – it is not just one statement, in my respectful submission - what we have is the learned prosecutor obviously seeing this as an issue in the trial, and making a submission to the jury in his final address at appeal book 363 as he was entitled to do, of course. Let me just clarify that, excuse me for one moment. Maybe I will just paraphrase it, but what he had said in his final address to the jury was that evidence of admissions are such a powerful piece of evidence because generally, people do not make admissions if they have not done things or that innocent people – I am paraphrasing – do not make admissions against interest.

That is a submission that was made by the learned prosecutor in his final address to the jury, indicating or trying to emphasise how powerful the evidence of admissions were. Then we have the impugned statement or direction, of course, closed in and surrounded by other directions, as your Honours referred to, which correctly set out the requirement for the jury to be satisfied in respect of both aspects - - -

BELL J: Indeed, the impugned statement itself, unlike the submission that you tell us the prosecutor made, was not couched in terms of power or something of that sort, rather it was a statement that this evidence is permitted to be given because normally it is considered to be relatively unlikely that an innocent person would untruthfully implicate himself in a crime et cetera. Then his Honour goes on, importantly to say, however, and to proceed and to in that part of the direction linked to the impugned statement, tell the jury of the necessity for the jury to be satisfied of the truthfulness. Now, it is against that background, Mr Dann, that you might be thought to have something of a hurdle in establishing the majority erred in concluding in the context of the issues at the trial and the summing-up as a whole, that statement was a miscarriage or constituted a miscarriage of justice.

MR DANN: Well, to address that in two ways, if I can, your Honour. Firstly, I adopt much of the reasoning set out by the Justice of Appeal Priest in answer to that firstly. What his Honour really seems to be talking about was either the experience of the law or the experience of the courts as a reference point to that part of the - - -

BELL J: His Honour did not say that.

MR DANN: He talked about evidence being admitted. He did not use - - -

BELL J: This was far from a direction that it is the experience of the Court that rarely does a person make an admission when it is not truthful. It was far from something of that sort, far from a statement that the law made a presumption or anything of that character. It was an explanation of the basis for the reception of the evidence which, it is accepted, it would have been better not to have made, but having said that, it was qualified immediately by a reference to the need for satisfaction of truth.

MR DANN: Yes, I have always conceded, and I do so again, that this was not in the terms of Burns, statements suggesting that the law has a presumption that it did not go that far or that high. On the other hand, your Honour, this is a case dealing with admissions alone. This is how the Court of Appeal decided this case, this was all three judges, that this is a case where the prosecution case was admissions alone. Now, in that context, the danger here was that the jury would have regarded that part of the directions on admissions and be seen to and taken to have acted upon, as we must, that part of the direction, that there was some recognised starting point, some recognised position recognised that a person does not untruthfully implicate themselves in an offence. An innocent person just does not do that.

Now, in the context of this particular case, that became very, very, very important, in my respectful submission. For the reasons set out by Justice Priest it has a significant impact. It is allied to or comes after a prosecution submission. It is repeated - that submission by the prosecutor is repeated again in part of the charge, so the jury have got this now three times. Getting back to your Honour’s question, if – the difficulty I am faced with – one of the difficulties, maybe a better word is concerns here is that this case, it seems, was not decided on – well, his Honour should not have said that but otherwise it was decided by – it was surrounded by proper directions so, therefore, it would have had no impact to the jury’s consideration of this issue that arose in this trial.

This substantial miscarriage of justice question, both as to the two bases which I have outlined in the written argument, seems to have been decided on a different basis, rather on a different footing, rather that it is a non-issue in the trial, it became a non-issue in the trial which, if you in my

respectful submission, follow the way the trial was conducted, the way defence counsel relied on the eyewitness evidence, the fact that the issue was raised on the evidence, has to involve error. To proceed on the basis that counsel by not making express argument or taking some line of express cross-examination in the context of what counsel did in this trial, that that converts an issue that otherwise arises on the evidence to a non-issue, in my submission impinges on that right to a fair trial. I was halfway through what the Court said in James but your Honours will be familiar with where I was headed.

CRENNAN J: Yes, I see your time is up, Mr Dann.

MR DANN: Yes. But where I was headed deals with the forensic difficulties of counsel, the forensic difficulties of inconsistent defences and the Court’s overriding obligation to provide proper direction and instruction in those particular areas. Here, I come back perhaps to where I started, there was an error in the trial and the approach to the substantial miscarriage of justice question has gone wrong for those reasons, and to remedy a miscarriage of justice – a substantial miscarriage in the instant case, and to deal with a wider question of principle that does arise in respect to the approach to counsel and counsel’s forensic choices and how that relates to and to what extent it can be determined in view of the substantial miscarriage of justice, a wider principle does emerge and for those reasons special leave should be granted. That is the way the matter is put on behalf of the applicant.

CRENNAN J: Thank you, Mr Dann. We will not trouble you, Mr Kissane. Justice Bell will give the Court’s ruling in this matter.

BELL J: The majority of the Court of Appeal of Victoria concluded that the trial judge’s statement of the rationale for the reception of evidence of admissions, read in the context of the summing-up as a whole and in light of the issues at the trial, was not productive of a miscarriage of justice.
Their Honours’ analysis of the principles in Burns v The Queen (1975) 132 CLR 258 and Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 was conventional. No issue of principle is raised by the application. If special leave to appeal were granted there would be insufficient prospects of disturbing their Honours’ conclusion. Special leave is refused.

MR DANN: If the Court pleases.

MR KISSANE: If the Court pleases.

CRENNAN J: Adjourn the Court to 10.15 am, Tuesday, 6 May in Canberra.

AT 1.26 PM THE MATTER WAS CONCLUDED