De Silva v The Queen [2019] HCATrans 70 (12 April 2019)

Last Updated: 15 April 2019

[2019] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B57 of 2018

B e t w e e n -

NERANJAN AGRAJITH KALUBUTH DE SILVA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 12 APRIL 2019, AT 9.52 AM

Copyright in the High Court of Australia
MR. P.J. CALLAGHAN, SC: May it please the Court, with my learned friend, MS P. MORREAU, we appear for the applicant. (instructed by Robertson O’Gorman Solicitors)

MR. C.W. HEATON, QC: May it please the Court, I appear for the respondent. (instructed by the Office of the Director of Public Prosecutions (QLD))

BELL J: Yes, Mr Callaghan.

MR CALLAGHAN: Your Honours, every person who is charged with or even is believed by authorities to have committed a criminal offence is confronted by a choice: to speak or remain silent. And, as every practitioner knows, the making of that choice is a momentous event in the course of criminal litigation, whether it is made in the course of the investigation or the trial, or usually both, it will have consequences. This application concerns one of those consequences. It is an application that arises in a case that is described, conveniently, as being one of word against word, and we will use that term whilst conscious of its imperfections.

The Queensland Court of Appeal has determined that, for the purpose of deciding whether a trial judge should explain the onus of proof in terms that have been described again for convenience as a Liberato direction, an unsworn word is not for those purposes a word. The decision has implications for the administration of justice in at least four different ways, which are itemised at application book 73, in paragraph 4 of our reply.

BELL J: If one could just briefly come back to Justice Brennan’s model direction in Liberato, that did assume word against word in the sense of sworn evidence. So when you say the Court of Appeal has taken the view that it does not extend to the circumstances of this application, the fact of the matter is it would require an extension of the direction proposed by Justice Brennan in his dissenting reasons in Liberato to bring your case within it.

MR CALLAGHAN: We accept that Liberato was a case of conflicting evidence.

BELL J: It is not just conflicting evidence, if one turns to what his Honour had to say.

MR CALLAGHAN: It was sworn word against sworn word.

NETTLE J: Oath against oath.

MR CALLAGHAN: Oath against oath; thank you. But, in principle, we would say there is nothing about the fact that it was that they were both sworn that affects the fact that there was evidence of a word. And both words were in evidence and the lines were drawn on that basis and, for that reason, the onus of proof should have been applied as equally as it would have had it been sworn, and for reasons.

BELL J: The approach of the Court of Appeal, reflected at application book 47, paragraph [45], as I understand it, was to say when one read the summingup as a whole the directions did serve to make clear that if any answer raised a doubt in the jury’s mind the prosecution would not have discharged its onus.

MR CALLAGHAN: Whereas in fact if the summingup is read as a whole it accentuates the need for the Liberato direction because it was deficient. Let us look to the way in which the applicant’s word was treated in the summingup. If you start at application book page 10, there is the formulaic direction given as to the fact that the applicant had not given evidence. That is at lines 35 and following.

If you go, then, to page 11 there are a total of seven paragraphs, beginning at about line 27, in which the status of the applicant’s interview is addressed and there are really only two that touched upon the use that could be made of his interview and they appear over the page at line 14 or 15, thereabouts. Now, they bear analysis. The first of those two paragraphs indicates to the jury or allows only that they were entitled to have regard to the answers in the applicant’s interview if they were accepted.

We say that was flawed and can express it no better than the words which were used in Murray v The Queen [2002] HCA 26; 211 CLR 193, and in particular the words used by Justice Gaudron at the top of page 202, to suggest there was a question as to whether the jury should accept the appellant’s version was not the way it should have been put. The question was whether the prosecution had negatived it as a reasonable possibility.

BELL J: That raises an interesting issue as to the relationship between Murray and Liberato. Justice Brennan in Liberato appeared to suggest that it would be common in a case of word against word for the jury to have suggested to them who do you believe, and in that instance it was important to make clear that, even if they preferred the evidence of the complainant to the extent that any evidence by the accused raised a doubt, the accused was entitled to the benefit of that doubt.

Murray makes very clear that it would be inappropriate to ever direct a jury in the way that it appears Justice Brennan was describing a practice preMurray that might have applied.

MR CALLAGHAN: Just so, but Justice Brennan did, I think, allow that this was a question which would, no doubt, occur to the jury anyway as a function of human thought: which one do we prefer? Whether or not the jury was directed that way is not the mischief about which we are complaining; the mischief is that this is a natural way in which the jury might think. They are instructed, of course, in terms of high principle about the nature of the onus and burden of proof.

The Liberato direction is a practical and meaningful explanation of how those concepts, which a jury will be hearing usually for the first time, actually work in the particular type of case with which they are confronted and the direction is, we submit, essential for that purpose. That was not only not the way in which the jury was instructed; the way in which they were instructed which allowed, as I say, only that regard could be had to the applicant’s version if it was accepted did make the question one of a choice for the jury.

BELL J: The complaint is not the Liberato point; it is, you say, a suggestion of reversal of the onus in relation to the treatment of the answers in the interview?

MR CALLAGHAN: Well, it is both. I mean, you can come at it from different ways. The summingup created the need for the Liberato direction, which we say should, in any event, have been given. But the Court of Appeal, we say, wrongly, with respect, decided the exact opposite, namely, that the summingup as a whole saved the need for the Liberato direction. It could not possibly do that when the terms are examined. As I say, there were two paragraphs only in the whole summingup in which the actual use of the applicant’s interview was explained – the use to his benefit.

In those two paragraphs the trial judge, firstly, cast it in terms of whether or not his answers could be accepted and in both paragraphs referred to the concept of his innocence – asked the jury to consider whether that pointed to his innocence. Well, that is unhelpful because there is no verdict of innocence and, again, the question was not whether there was something that could point to his innocence but something that raised a doubt about his guilt. This was not explained to the jury and the effect of that is that it is a freestanding error, but it compounds the error of the failure to

BELL J: When you say “freestanding error” you accept, I think, that the circumstances of this case did not read within Justice Brennan’s statement of the principle in Liberato, his Honour having in mind a case where there is sworn evidence both from the complainant and the accused.

MR CALLAGHAN: In that case, yes, but it is a statement of principle which has been consistently applied and it has never been insisted in those applications.

NETTLE J: Your freestanding error was talking about the matter in terms of innocence rather than proof beyond reasonable doubt of guilt?

MR CALLAGHAN: Yes, and the use of the words “accept” and “innocence” in those two paragraphs. It is a freestanding error; that is right. Your Honour Justice Bell identifies correctly that Liberato itself was a case of oath against oath but there is, we say, nothing in the principle that was articulated that insisted that the defendant’s version be on oath and the question is one which has not been

KEANE J: It is a little difficult, though, is it not, because if you are going to give a Liberato direction and, at its core, it is about oath against oath and the possibility of doubt because of that, if it is to be given, does the judge, in a case where the accused has not actually given evidence because he is entitled not to and nothing has been made of that, how do you avoid the judge saying or drawing the attention of the jury to the fact that the accused has not given evidence without skewing the direction in relation to what cannot be made of the failure of the accused to give evidence?

MR CALLAGHAN: There is no difficulty with the judge giving a direction about the significance of a defendant not giving evidence and there is, further, no difficulty with the jury being told – as they were and should be – that the unsworn version may have less weight because it has not been given on oath and subject to crossexamination. But these are just that: questions of weight. And this is at the core of our application. Questions of weight do not determine directions to be given by trial judges. And that is really what this is about. Yes, the unsworn version has less weight and the jury can be directed as such. It has its own advantages, of course.

KEANE J: Why is that not what the trial judge here has done at page 12 of the application book, commencing at line 14? I mean, I know your point about innocence, but the Court of Appeal dealt with that. But why is not what the trial judge is saying, beginning at line 15, a direction about weight being a matter for the jury and that they are entitled to have regard to those answers and to give them what weight they think appropriate?

MR CALLAGHAN: There is nothing wrong with that. The mischief in that passage is the use of the word “accept” because they do not have to be accepted in order for regard to be had to them. The way it is put, they are only entitled to have regard to them at all – to give any weight – large or small, if they accepted them. And that is, we say, plainly wrong because it is not whether they accepted them; it is whether there was something about them that caused them concern, something that caused them to entertain reasonable possibilities. They did not have to be positively accepted.

KEANE J: When her Honour is saying that, is that not harking back to what her Honour said at page 11, line 40:

you must accept that the defendant said such things. That is, gave answers about his proximity to the complainant in the leadup to these two alleged events. Well, this is a recording. You can listen to that recording and that is a matter that you can work out for yourselves by simply listening to the tape.

Is that not what those remarks are directed to?

MR CALLAGHAN: The Court of Appeal made that point and we submit, with the greatest of respect, that interpretation is just contrived. There is no way that a jury would think, when they are being told “If you accept them, give them whatever weight you need”, that they are thinking back to that direction about accepting whether they were made or not, when that was completely uncontroversial. It is not what the judge said. He said, “If you accept them”, not “If you accept that they were made”, as I was talking about earlier. “If you accept them” – that is to say, the answers, “If you accept them”. With respect, the Court of Appeal did justify their decision on that basis and we say it is impossible to construe that word in the same way.

BELL J: The Court of Appeal did that because it is standard in cases where the jury are listening to an electronically recorded item of evidence to tell the jury that the first thing is it is a matter for them to see what they accept

MR CALLAGHAN: Yes.

BELL J: is said on the electronic recording.

MR CALLAGHAN: His Honour did that at line 40, on page 11.

BELL J: Indeed. The matter I am raising with you, Mr Callaghan, is it is by no means evident that it was a contrivance to conclude that when shortly thereafter the trial judge, again, referred to acceptance that it was not referring back to the first thing that the jury must ask: do we accept these things were said?

MR CALLAGHAN: Let us put it this way, which is what we have to do for the purposes of this application: that there is at least a danger that the jury heard the passage, at page 12, line 16, as raising a requirement that they actually be accepted.

NETTLE J: I suppose that is particularly so given the following sentence where he refers them to the absence of crossexamination. It really drives it home, does it not?

MR CALLAGHAN: Yes, just so. It does, with respect. That, as we say, is both an error and something which accentuated the need for the Liberato direction. As I say, this really does involve a question as to whether the weight of the evidence should affect the directions. If you come back to Justice Brennan, as he then was, and the statement that he made in Liberato, the fact that it was oath against oath, again, could only have been significant to the weight of the evidence that was being discussed. The fact was the dangers, which his Honour identified, were present in this case.

It is not as if an unsworn statement has no weight. On the contrary, yes, it is not subjected to crossexamination by a lawyer, but they are usually given without the benefit of legal advice. They are usually given in a totally unscripted form. They are given without knowledge of the case against the individual, so there is no opportunity for dovetailing, and they are given contemporaneously with the events. So, I mean, we are not talking about something negligible here. It is capable of being a powerful piece of evidence and, once it is made evidence, it is the word. It becomes the word, which competes against another word.

BELL J: You had the light on.

MR CALLAGHAN: Okay. I would quickly like to refer to the state of the law in Western Australia because we did

BELL J: Justice Wheeler’s decision.

MR CALLAGHAN: Yes. Could I just ask also that regard be had to the decision of RMD v Western Australia [2017] WASCA 70; 266 A Crim R 67. You do not need to dwell on the details but it is on the respondent’s list, I believe. It was a case in which an appellant’s outofcourt statement in the form of a recorded interview was tendered and argued to be a reason why a Liberato direction should be given. Had the view of Justice Wheeler, as expressed in Johnson, assumed orthodoxy, that was an occasion on which that view ought to have been applied and it would have disposed of the case. But, as can be seen, from an examination of the judgment of Justice Buss and although Johnson is referenced at page 104, there is no mention of an attempt to apply Johnson in that case of RMD. So the State in Western
Australia is anything but clear, we would submit. We do rely on ground 2 as well. If leave was to be granted, we would seek

BELL J: Yes, thank you, Mr Heaton.

MR HEATON: Your Honours, this application is not so much about whether or not a Liberato direction should have been given, indeed because none was asked for at the trial. At the heart of this application really is the question whether or not it was correct for the Court of Appeal to have found that, in the absence of a Liberato style direction, there was no miscarriage of justice.

The court, properly, in my submission, analysed the totality of the summingup, during which on no less than nine occasions, I guess depending on what you count – and I will explain that in a moment – the jury were reminded about the onus and the standard of proof. I say “depending on what you count” because it is apparent from the directions that both counsel and for the defence also referred in their closing addresses to the onus and the standard of proof and the jury were reminded about that in the directions that they were given.

Really, the first hurdle in the face of the contention on this appeal before the Court of Appeal was not overcome by the applicant. That is, it was submitted that, because of Liberato and the mandatory language that was used in Liberato, this was a case in which a direction, now contended for, should have been given.

The court, in analysing that proposition, concluded – properly, in my submission – that Liberato was a case involving sworn evidence against sworn evidence and, indeed, other aspects of the case as well involving directions and inviting the jury to consider it as who do you prefer or who do you believe – features that are absent in this particular case – so the court analysed what Liberato was actually authority for, as compared to the circumstances in this case and concluded – and this is at paragraph [42] of the decision of Justice Gotterson – that this was unlike Liberato, not a case involving sworn word against sworn word and therefore if Liberato is authority and I question that, but for the sake of this application, it is not a question that needs an answer – but if Liberato is said to be authority for mandatory directions in the circumstances of that case, this was not such a case. So, the court

BELL J: What do you say to Mr Callaghan’s submission that the treatment of the applicant’s answers with the emphasis on – if you accept them, linked to the injunction to remember they were not the subject of crossexamination it is not just that there was not a Liberato direction but the directions involved a tendency to undercut the general directions as to standard of proof and onus?

MR HEATON: Two things. Firstly, in the context of all of the summingup and the number of times that the jury was reminded about the onus and standard of proof, in my submission, they cannot have been, in circumstances of this case – bearing in mind that it was, on its face, a very straightforward allegation and a simple answer to it. The jury cannot have misunderstood what their task properly was.

Secondly, turning – and, perhaps, focusing too greatly on the words themselves rather than the words in the context of the whole of the summingup, might lead to an impression which was not intended and, indeed, not properly open on the words themselves. But, this challenge – and the basis of the words if you accept them – was advanced before the Court of Appeal and dealt with and, in my submission, properly so.

The directions – again, in the context of this evidence – that is the evidence of the defendant in his record of interview – the jury were directed that they had to – one of the requirements was that they had to accept that he had said what was alleged that he said in the recordings. So, that is a formal requirement. Indeed, in my submission, the Court of Appeal was correct to conclude that the proper interpretation – the fair interpretation – of the words as they appeared on the second occasion, which is at appeal book, page 12, at about line 16, was in that context.

The question of weight – and, indeed, bearing in mind that they have not been tested by crossexamination – links to the immediately preceding sentence in which they were told, you give them whatever weight you think appropriate. So, there are two elements there. You can have regard to those answers if you accept them – that is, if you accept that he made them – and give them whatever weight you think appropriate, bearing in mind that they have not been subject to crossexamination.

So, in my submission, even on a close analysis of the words themselves, the error that is alleged in the summingup is not, in my submission, a realistic one. And, particularly, then, placing those words in the context of the summingup and the issues in the trial cannot have

NETTLE J: So, you say the words, “if you accept them”, just below line 15 means not if you accept that the answers were true but you accept that those answers were given.

MR HEATON: That was the finding of the Court of Appeal.

NETTLE J: I know it was, but that is what you submit.

MR HEATON: Yes.

NETTLE J: The Crown submission is that.

MR HEATON: Yes.

NETTLE J: It is a strange way to say it, is it not? Normally, if a trial judge was saying to a jury, you have got to decide whether or not those were the answers that were given, that is what the trial judge would say.

MR HEATON: It was perhaps in light of what had earlier been said at appeal book 11, at about line 40. It is perhaps a shorthand way of referring back to the more fulsome instruction that they had only moments earlier been given.

KEANE J: If the judge was to be understood as saying, “If you accept them”, in the sense that if you accept that they were true, the direction would have been you should acquit.

MR HEATON: Precisely. The issue was very – as I said earlier, this was a straightforward case. The issue was very clearly identified. It would be unwise, perhaps, to underestimate the capacity of a jury to unravel, properly, the issues that confronted them. To the extent that they were required to be properly directed as to the fundamental underpinnings of a criminal trial and the fairness – that is, onus and standard of proof – they were given those directions. So, in my submission, the summingup when looked at in total was sufficient to address the risk that the Liberatostyle direction might have been intended to address. Should I turn to the intoxication ground?

BELL J: Yes.

MR HEATON: In my submission, in answer to that challenge to the conviction, a judge is entitled to make comments on the evidence that the judge considers might assist the jury to properly understand the evidence, the law as it applies to that evidence, and what their task is. This was simply properly regarded. This was simply an example of the judge doing precisely that.

BELL J: The Court of Appeal’s analysis was, in essence, as I understand it, this was not productive of a miscarriage of justice even if the direction should not have been given.

MR HEATON: Precisely. Bearing in mind that ultimately that is always what the Court of Appeal was obliged to undertake. That is the task that the
Court of Appeal was obliged to undertake – to analyse, in the face of an irregularity if it was an irregularity, analyse whether it occasioned a miscarriage of justice. It may well have been that, in the circumstances of this case, that the judge apprehended a risk that the jury might simply excuse his behaviour on the basis of the consumption of alcohol. And, the direction might have been – or the comment on the circumstances and on the law – might have been designed to divert the jury from that sort of thinking.

The Court of Appeal, again, analysed the direction in the context of all of the circumstances and all of the evidence and the issues in the trial and concluded that, in any event, even though it was unnecessary in the circumstances of the evidence in this case, in any event, it did not occasion a miscarriage of justice. In my submission, the circumstances here do not compel an alternative or another outcome. Those are my submissions.

BELL J: Thank you, Mr Heaton. Mr Callaghan.

MR CALLAGHAN: The respondent’s submission began in response to a question from your Honour Justice Bell by, again, invoking the context of the whole of the summingup. We reiterate that there are a full two paragraphs in the whole summingup in which the use of the applicant’s account were canvassed and there are errors in both of them.

The final word on this question of what might have been meant by the word “accept” – two final words – it should be noted that when the word was first used in terms of whether they were – I am sorry, at page 11, line 40, the direction was:

The first thing, of course, is that you must accept that the defendant said such things.

That is right if you are talking about a recording, you must accept

BELL J: His Honour went on to invite the jury to listen to the recording and work out for themselves what was heard on it.

MR CALLAGHAN: That is right, but when the word is used, at page 12, line 16, it is conditional – that is, it is “if you accept them”. That is, there is a discretion there that he is giving but he is imposing an onus of acceptance. To join in on your Honour Justice Keane’s observation, if they had been directed that they accepted them – accepted that the applicant’s answers were true – yes, they might have acquitted but that would also have been a misdirection because they had to be asked the real question was whether the answers raised any reasonable possibility, any reasonable doubt.

KEANE J: Yes, but if they accepted they were true, that is the end of it, is it not?

MR CALLAGHAN: That is right.

KEANE J: That is why it cannot possibly be the case that his Honour was to be understood as suggesting that if they accepted that they were true, they would make of them what they thought was appropriate in terms of weight. If what he said was true, then there cannot be any question that he was not guilty.

MR CALLAGHAN: It was still implying a level of, obviously, acceptance of something about which the applicant had to satisfy them – whether of truth or some sort of level of conviction. And there is, at least, as I say, a risk that the jury would have interpreted it that way and the onus, thereby, was reversed. As to intoxication

BELL J: Just before you come to that, Mr Callaghan, the principal point put against you, as I understand it, is – on seven occasions, I think we were told – the trial judge correctly directed on the onus and standard of proof and no request was made by counsel for any further direction.

MR CALLAGHAN: The response to that is this: that, yes, they were given – I mean, it sounds impressive when put that way, but you can go to the transcript and look at the relatively brief sections of the transcript which do not include a passage at the conclusion where they are reminded of it before they were sent out. Yes, they were given relatively brief instructions – correct instructions – about the nature of the onus of proof. That is accepted. They are, as I say, high level principles and the jury was not given an explanation as to the way they should be applied in circumstances of a case such as this. As to the failure to give a direction, can I take you to application book 45

BELL J: Yes.

MR CALLAGHAN: at line 19, and the concession made by the respondent in the Court of Appeal would have done no harm and would have assisted the appellant’s case had the jury been told things which amount a Liberato direction. If it could have done no harm and if it might have assisted the appellant’s case – or the applicant’s case – then there could have been no rational forensic basis on which to refrain from asking for that direction to be given. That is, in a nutshell, the situation.

The final word on intoxication is that whilst of course as, with respect, Mr Heaton submits, a judge is entitled to comment on the evidence, that is not what this was. The direction on intoxication was given as an
instruction of law. In response to your Honour Justice Bell’s indication of the Court of Appeal’s analysis of this, with respect they did not analyse it. If they had, they would have, at least, noted the potential for unfairness in that the direction drew attention to the applicant’s memory and the effect of intoxication on it when, of course, there was a live issue about the effect of intoxication on the complainant’s memory.

BELL J: There was no evidence to speak of as to the applicant’s intoxication.

MR CALLAGHAN: No. And, yet, with judicial imprimatur, the jury were required to consider it and to have regard to it in the context only of the applicant when what they really should have been told about was the effect of the intoxication on the complainant.

BELL J: You have to get over the difficulty of miscarriage of justice on your second ground. It is rather difficult to see how a direction, otiose as it may have been, worked positive unfairness.

MR CALLAGHAN: It was a direction which the jury were told they were bound to apply.

BELL J: Yes, all right. The Court will adjourn briefly to consider the future course of this matter.

At 10:28 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.31 AM:

BELL J: Yes, there will be a grant of special leave in this matter. The estimate as to the time, Mr Callaghan?

MR CALLAGHAN: Is leave to be granted on ground 2?

BELL J: Confined to ground 1, Mr Callaghan.

MR CALLAGHAN: Half a day.

BELL J: Half a day. Yes, very well. Can I invite you to arrange for those who instruct you to collect the standard directions in relation to the filing of submissions, and the like, and encourage those who instruct you to comply with them?

MR CALLAGHAN: Of course.

BELL J: Yes, thank you.

AT 10.31 AM THE MATTER WAS CONCLUDED