Abbott v The Queen [2015] HCATrans 265 (16 October 2015)

Last Updated: 21 October 2015

[2015] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S93 of 2015

B e t w e e n -

STEPHEN ZADE ABBOTT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2015, AT 11.36 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with MS J.L. ROY. (instructed by Nadia’s Law)

MR J.H. PICKERING, SC: I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases, we need an extension of time.

FRENCH CJ: Is that objected to?

MR PICKERING: No, your Honour.

FRENCH CJ: You have that extension.

MR GAME: Thank you, your Honour. Could I take your Honours to the application book at page 68? That is an extract in our submissions but you will see at 66 and 67 we set out that those witnesses – O’Dea, the host - Mr Balchin, and Mr Tucker – none of them could give an actual account, or gave an actual account of the assault although on Mr Tucker’s account the applicant was the assailant, and the applicant gave evidence. Then it was Mr Webb who gave evidence about what he said was the intoxication of the applicant. Now, we turn to page 68, and this is part of the prosecutor’s address, but properly understood it is really the central part of his address. There is just this and a submission about, shall I say, the circumstantial facts.

FRENCH CJ: Well, there is a key question in this case, is there not, as to whether or not accepting that some of what the prosecutor said, if it had been in a direction, would have constituted an error on the part of the judge, whether having regard to the judge’s direction there was a miscarriage.

MR GAME: Yes, your Honour, but I am going to submit in a moment that there are much deeper problems with this passage than the Court appreciated. But all the judge said about the addresses appears at page 4 of the application book:

You will give counsel’s addresses such weight as you think appropriate –

So there are no words said to detract from this and what I put is that the direction about motive concerning the accused puts him at a disadvantage from which he cannot recover. There is nothing that can be said to meet that submission. Now, I want though first to just extract what I say is the meaning of this address. If you go to the top of page - - -

FRENCH CJ: Does that mean the jury should have been discharged?

MR GAME: Yes, the judge should have stopped the trial at that moment.

GAGELER J: Nobody asked for that to occur.

MR GAME: Nobody did, but nobody understood what the problem was, and this is a salaried Crown Prosecutor. My position is you cannot have an accusatorial trial system where anybody is subjected to this kind of address and it is a very deep-seated problem, much deeper than the Court of Criminal Appeal appreciated. We try to explain it in our submissions, but I will just explain why by reference to this passage.

So we have got this difference about intoxication and the prosecutor has latched onto this as a central argument and he says Mr Webb – he says, “I suggest” he has “no motive for him to give you a version which is not accurate”. Now, motive should not have come into this at all. You would have to get through section 103 of the Evidence Act, you would have to establish substantial probative value, and you would have to have a reason to cross-examine on it. Then this passage has to be understood with what appears further down the page where he says, about line 32:

Mr Webb, I suggest to you, has [no] motive whatsoever.

Then we have Mr Tucker, who is the victim –

Does Mr Tucker have a motive to suggest or to tell you on oath that it was the accused who struck him on the head and slashed his face? Why would he pick on Mr Abbott? Out of all the people –

That is a complete misconstruction of what happened. There was no question of disputed identity. There was a fight between these two men and the question was who was the assailant. Then the next sentence:

Is there a motive for the accused not to give you an accurate version of what occurred? You might think that his motive is that he is facing a serious criminal charge.

Now, that is prohibited comment and that is the answer to the question about who you accept, and I submit that there is nothing the accused can say. Now, it is worth reflecting that cases such as RPS and Azzopardi about not making adverse comment about an accused who does not give evidence, now the accused gives evidence, how can the accused recover from this? May I go back to the address because the address has got other deep problems in it? Having accepted Mr Webb, because his motive is far and away preferable to the accused’s who has the disadvantage of being the accused, and then he says why is the accused saying this? He says to make his evidence:

more credible. Was he trying to discredit Mr Tucker?

So now we have got evidence about intoxication for an ulterior purpose of discrediting Mr Tucker. But then if we chase that through to the end of that paragraph just before line 30 – and the Court of Criminal Appeal omits this passage in the critical part of the examination:

the reason why he’s trying to discredit Mr Tucker is because Mr Tucker gives an accurate account of what has occurred.

That is an assumption and that is straight consciousness of guilt. He is lying to discredit Mr Tucker because he knows that Mr Tucker is telling the truth, i.e., it is consciousness of guilt and, in the language of Edwards, there is no escaping that. The further vice of this is that you can use this one lie to reject everything he says, and that is a few lines above. So my rhetorical question is how could you recover from this address?

GAGELER J: Well, it is one thing to read the address now in print. It is quite another thing to be there at the time. The way Justice Schmidt appears to have approached this is that it is unlikely to have been understood by the jury in that fundamentally flawed sense that you are now submitting.

MR GAME: But, your Honour, this address only goes for four or five pages and the only other part of this address is an address about what you draw from the circumstances. May I ask rhetorically what else could it possibly mean? I should say – I will come to the Court of Criminal Appeal’s judgment in a moment – but the Court of Criminal Appeal is sidelining it by saying this is about credibility. Well, acceptability – it is always going to be about credibility, and that is no answer, and that is a question of general importance.

But this is also a section 35A(b) special leave which we say you just cannot have in an accusatorial system accused people put to trial convicted on the basis of these kinds of comments. It is worth reflecting that in Palmer that was about cross-examination by the prosecutor. It does not matter that it is in the prosecutor’s address as opposed to the judge’s summing-up, and no directions about onus and standard could possibly deal with this disadvantage.

May I go to the judgment at page 51? At the top of the page, paragraph 48, it does depend on how you construe it, but once you have got the prohibited comment we say, applying Weiss, you have a departure from trial according to law, you have a miscarriage of justice, and the question, if you have one, is a question about the proviso and we say, applying Lee (No 2), this is a necessary presupposition of the trial. Applying Hargraves, it is said in Hargraves that nothing should be said by intermediate courts to, shall I say, permit or encourage this kind of conduct. Then we go on in the judgment. The next passage at paragraph 50:

The Crown submitted . . . had no motive to lie –

The court is introducing the idea that this is okay because it is about credibility. Then they set out:

“Was he trying [to] colour his evidence to make his evidence more acceptable, more credible? Was he trying to discredit Mr Tucker?

But they have left out the critical bit. The critical bit is that he is doing it because knows that he is guilty, which is the bit I just read to you. So when they say – 51:

There was nothing objectionable in this submission –

there is nothing objectionable in this submission only insofar as you do not have regard to what was actually said. Now, it goes on. Then we see at paragraph 54 the idea is:

The submissions in relation to whether Mr Webb or the applicant should be believed . . . did not rest on the applicant’s interest in securing an acquittal . . . but rather on an analysis of how credit issues lying between –

We say that is a question of general importance because how can you possibly sideline accusatorial principles by saying that they are just credibility issues, particularly when it has been made the centrepiece of the address and the jury are being told they can convict on this line of reasoning alone. If we then turn over to paragraph 60, it is suggested that this direction is somehow equivalent to what was said in Hargraves, but in Hargraves there was one dot point about an interest of witnesses. In Robinson the accused was not even specifically mentioned.

So this is not a similar situation. This is worse than both, and we say how could it possibly not mean that the accused’s evidence had to be scrutinised more carefully? That was the whole point of it. So what is said at paragraph 60 is plain wrong. Then we come to the “consciousness of guilt” proposition at the bottom of 67 and they say, nor is it consciousness of guilt, but they have not addressed the submission that was put about consciousness of guilt. If you look at the top of page 56, you see at paragraph 16 the extract from Zoneff:

As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, “the accused knew that the truth . . . would implicate him in [the commission of] the offence” –

Well, if you go back to page 68 of the application book it says:

because Mr Tucker gives an accurate account of what occurred.

He is trying to discredit Mr Tucker because Mr Tucker gives an accurate account. That is consciousness of guilt. It cannot be escaped. So here we have a totally impermissible address by a prosecutor and a totally unsatisfactory judgment about it, and it does raise questions of general importance relating to the accusatorial system, and nothing said in the summing-up could possibly be seen to, as it were, answer those problems.

GAGELER J: So, Mr Game, at line 30 on page 55, the second sentence of paragraph 64 I understood to be the way in which the case for your client was put to the Court of Appeal. You are putting it on a more fundamental basis now as I understand it. You are saying that there could be nothing that was - - -

MR GAME: I did the appeal and I did not make that submission.

GAGELER J: I see.

MR GAME: Rule 4 had nothing to do with the case, but I did say that the judge should have stopped the trial. But that second sentence of paragraph 64 is not an accurate reflection of how I put the case. If you look at the ground of appeal, it is not framed in those terms, and the ground of appeal – if I can find it – there was only one ground of appeal. I have a whole army of people helping me find it but anyway - page 34. Sorry, there it is, it is the briefest possible ground of appeal, and rule 4 had nothing to do with it. I have my written submissions here.

GAGELER J: No, I am not questioning it, Mr Game.

MR GAME: No, sorry, I am being excessively defensive, but I did say leave would be granted under section 5. I had overlooked mentioning that

that passage was wrong, anyway, so I am sorry for my emphatic manner - - -

GAGELER J: I am sorry to bring it up.

MR GAME: I should apologise for my emphatic manner on all the other occasions that I have appeared, but I get carried away. Anyway, those are my submissions, if the Court pleases.

FRENCH CJ: Thank you. Yes, Mr Pickering.

MR PICKERING: Can I take your Honours back to page 68 of the application book and particularly the impugned passage of the Crown Prosecutor’s address that is seen there at about line 38:

You might think that his motive is that he is facing a serious criminal charge.

Obviously we conceded in the Court of Criminal Appeal the inappropriateness of such a submission. Can I tease out though on that question the way that Mr Game has addressed here about had the parties at the trial immediately been conscious of the inappropriateness of that submission? In my submission to this Court, it is a little unrealistic to say that that must have then automatically resulted in a discharge, and that has some important categories moving forward.

The reason I say that is if defence counsel had have immediately indicated to the judge that that was an inappropriate submission and, given that it was just a submission by a Crown and not a direction by a judge, one would have thought that a trial judge could have quite easily at that stage have said to the jury, “That submission is inappropriate. You are to ignore that submission and you should not be in any way looking at the accused’s evidence in that way”.

So one would have thought that that as a matter of law, had that happened and a judge gave such a direction, if you came to a Court of Criminal Appeal and said actually you could never have saved the trial, such a direction could never save the trial, would be very unlikely to have succeeded. One would have thought that a court would have said - well a judge having pointed that out, that would have been a satisfactory resolution of that.

Now, that did not happen in this trial, but then as effectively – and a point that Mr Game makes following on from that is that if such a submission is made, as it was here, that then nothing can happen effectively in the Court of Criminal Appeal to save such a conviction when a submission is made. In my submission, that becomes problematical because the Court of Criminal Appeal were well aware that such a submission was inappropriate but looked at the directions in order to deal with the miscarriage of justice point.

Can I take your Honours just to two important directions that I say on behalf of the respondent would have assisted the jury to realise that that submission really could not have taken it – could not have been accepted, and why the Court of Criminal Appeal was right to find no miscarriage of justice.

If I could first take you to page 15 of the application book, beginning about line 45, your Honours will see there, moving from page 15 onto 16, the trial judge specifically telling the jury that they have to scrutinise with great care the evidence of the complainant in the matter and that particularly was important in this trial because, as your Honours would be aware, the only witness for the prosecution who would give evidence of the attack was the complainant themselves. So the jury was specifically told that despite anything the Crown Prosecutor said, you must actually – the only witness you must scrutinise with great care is the complainant.

Then, more than that, if I could take your Honours to page 19 of the application book at around line 20 – the direction in relation to the accused’s evidence actually began at line 50 on page 18, but the part that I wanted to take your Honours to is where the judge gave the appropriate directions saying:

The Crown in discharging its obligation to prove the accused’s guilt must satisfy you that the version given by the accused could not possibly be true.

So the trial judge has focused the jury on actually the true essential task in this trial, being the Crown relies on one witness and you must scrutinise with great care and actually - - -

FRENCH CJ: But logically consistent with that is the sub silentio observation including by proving that he had a motive to lie, or demonstrating he had a motive to lie.

MR PICKERING: Well, as I said, I am not going to try and justify the submission, your Honour.

FRENCH CJ: I am just looking at the extent to which it can be said the direction cures the problem.

MR PICKERING: My submission to your Honours is that it can cure the problem, because it focuses the jury on the correct thinking in this particular manner, that being that you must scrutinise the complainant’s evidence with great care and actually you do not scrutinise the accused’s evidence with great care. You scrutinise whether the prosecution has succeeded in establishing that it could not reasonably possibly be true and, in my submission, the Court of Criminal Appeal were correct in then saying that despite the error in the Crown Prosecutor’s submission, that when you take those two directions into account, and of course the Court of Criminal Appeal also outlined the standard directions in relation to the onus of proof and the standard of proof, that you can reach the decision it is not a miscarriage of justice.

When I started making these points, your Honours, if you take the line of Mr Game in this particular matter, he is submitting that an address where you raise this issue of the accused’s motive to lie by a Crown Prosecutor and therefore never be saved in the future, that is a very stringent, non-elastic test to place on any Court of Criminal Appeal, which is really looking at concepts of miscarriage of justice, particularly because it is at the end of the day a submission which is never going to carry the same power or weight as a direction by a trial judge.

I could see such a submission if a trial judge had given this direction that you should scrutinise the evidence because the accused has a motive to lie, that this argument would be much more difficult. But ultimately it was just in the context of the Crown Prosecutor’s submission which of course the jury were also told was not evidence in the matter and the manner in which it could be used.

So it was not perfectly cured clearly by the trial judge because it was not raised at the trial but, in my submission, the way in which ultimately the directions deal with this particular trial – it was reliant on one witness to prove the prosecution’s case – the Court of Criminal Appeal were correct in determining that there was not any miscarriage of justice for that point.

Your Honours, I just want to briefly deal with the other submission of my friend about other aspects of the Crown Prosecutor’s address and, in particular, the submission of what Mr Game in his written submissions has referred to as the shortcut to conviction. But ultimately that falls in many ways in the same category. It was simply a submission that they would not accept the accused’s evidence, or that the Crown could establish that it could not be possibly true because if the Crown could show that one aspect of his evidence was fundamentally untruthful, that being his level of intoxication, they could reason that he should not be accepted.

Now, that was just a submission. It could be rejected by the jury. It may not have been a particularly powerful submission by the Crown. It may have been one not accepted. But it does not actually reverse the onus of proof. No matter how you look at this particular trial, the fundamental issue was the credibility of the complainant and, secondly, whether the Crown could diminish effectively the credibility of the accused to such an extent that a jury would be satisfied that his version could not reasonably possibly be true.

In my submission, that is really outside of the impugned submission – that is really only what the Crown Prosecutor was doing, was to try to establish to the jury that the version of the accused lacked such credibility that it could not reasonably be true. They are my submissions, thank you, your Honours.

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases. The directions at page 19 leave the accused’s motive absorbed, as it were, as something that is there available to diminish his credibility. So the direction at 19, in our submission, does not undercut at all the problem raised. The shortcut emphasises the importance of the issue, that is to say, you can convict him through this line of reasoning alone. The point about discharge was an emphatic response to a question from your Honour Justice Gageler, but the critical thing is, it is uncorrected. Whether it could be corrected is a different question, but it is uncorrected, is my point.

GAGELER J: Mr Game, if you take what is said at the top of page 55 in the first three lines - - -

MR GAME: Yes.

GAGELER J: If you take that as a fair analysis of the facts, is that an answer to your case, or is your case much more profound than that?

MR GAME: Well, my case is more important than that, because it is not a question for the court to sit and say what prominence it would be given. It sits there. How would the court possibly know what prominence it was given? That is idle speculation, in fact, because if you read the address, which we have extracted, you can see – the Crown’s address we have extracted at pages 89 and following. You see right through to the top of 94 is this.....about who do you believe, and we would say that raises its own problems.

The only other thing in the Crown address is this thing about what inferences might be drawn from the circumstances, with this feeding into it

and, not only that, feeding the credibility issue into it when it says things like when comparing the two versions, so it even infects that as well. So, to say it was not given prominence is to kind of – if it had been a trial that went for six months and the address had gone for two weeks and there had been numerous other things said, you might have a point. This trial went for two days. This address cannot have gone for more than three-quarters of an hour and with this other bit at the end it is the centrepiece for the address. If the Court pleases.

FRENCH CJ: Thank you.

The applicant for special leave was convicted of wounding with intent to cause grievous bodily harm. He was sentenced to a term of imprisonment of seven years with a non-parole period of three years and six months. The single ground of the application for special leave is that the Court of Criminal Appeal erred in failing to find that the trial miscarried by reasons of statements and submissions made by the Crown Prosecutor in his closing address.

While the Crown Prosecutor had made submissions suggesting, inter alia, that the jury look to the applicant’s motive to lie because he was on trial for a serious criminal charge, the trial judge’s direction was comprehensive and did not contain any such error, nor did counsel at the trial seek the discharge of the jury or a direction that the jury disregard any aspect of the Crown Prosecutor’s address. In our opinion, having regard to those matters, the applicant’s prospects of success on appeal are not sufficient to warrant the grant of special leave. Special leave will be refused.

AT 12.09 PM THE MATTER WAS CONCLUDED