Home | Databases | WorldLII | Search | Feedback High Court of Australia Transcripts

You are here: 

Brown v The Queen M67/2000 [ 2001] HCATrans 263  (22 June 2001)

Melbourne No M67 of 2000

B e t w e e n -

ALEXANDER ROBERT BROWN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 JUNE 2001 AT 2.01 PM

Copyright in the High Court of Australia

MR N. PAPAS: May it please the Court, I appear with my learned friend, MS F.J. STEWART, on behalf of the applicant. (instructed by Victoria Legal Aid)

MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MS R.E. CARLIN, for the respondent. (instructed by Mr S. Carisbrook, Solicitor for Public Prosecutions)

KIRBY J: Mr McArdle.

MR PAPAS: May it please the Court, at application book page 44 the judgment of his Honour Justice Callaway deals with the point we seek to agitate.

KIRBY J: Yes, we have read that.

MR PAPAS: The particular passage that we seek to draw the Court's attention is at line 19 on page 45 where his Honour makes the following point:

I find it unnecessary to decide any of the foregoing points. This was not a case where unacceptable questions had been asked in a record of interview or in cross-examination of the applicant. The impugned passages occurred only in the course of the prosecutor's final address. It would be an unusual case - - -

KIRBY J: Even if we were of the view that the principle in Palmer applies equally to the questions as to the address, and that is my current view, then you still have to establish in the circumstances of this case your client suffered a miscarriage of justice which would warrant our intervention, and you would have to do that in circumstances where, (a), the issue of motive was in a sense raised by your questions of the complainant and, (b), the trial judge gave the jury a fairly clear direction that the motive was not a matter that they were concerned with. So that in those circumstances, even if you were to get up on the principle, which I am presently minded to think you would, it would not lead anywhere in this case.

MR PAPAS: Perhaps, then, I will concentrate precisely on that point. I have a number of authorities from around the country that suggest that his Honour stated principle is incorrect and inconsistent with both Victorian authority and other authority.

KIRBY J: But I would add to (c) the fact that his Honour does appear to have applied the correct test concerning the need to discharge the jury. There must be a strong need to discharge the jury, especially, one might add, (d), at the very end of the trial. This was a completion of a trial in what otherwise appears to be a strong Crown case.

MR PAPAS: No doubt your Honours will appreciate me getting straight to the point then.

Where counsel, experience defence counsel - I know your Honours have already said it does not matter - takes the point immediately after the prosecutors - - -

KIRBY J: I realise that. Everything was done very correctly on your side.

MR PAPAS: And he said, as such, "We cannot get a fair trial now, your Honour." He did not then ask his Honour to spend a long time in the charge putting, perhaps, the detail that might have been put into a more precise direction, a more detailed direction dealing with the specific points that were made by the prosecutor. So it might be said that the applicant in this case has not sought a further direction, and then when his counsel up here says, "Well, your Honours, the direction was inadequate because of the nature of the prejudice", that is the best I can put it. In other words, the dynamics of the case, the nature of the particular ways in which the prosecutor in this case put the reverse question - - -

KIRBY J: You can say you add the dynamics of the case, the fact that it was said just before the jury retires to consider the matter and the fact that the statements were repeated. It was not as if it was single slip; it was repeated.

MR PAPAS: Yes.

KIRBY J: One takes that all into account, but you still have (a), (b), (c) and (d) to struggle with, because it is only if you can show a miscarriage of justice you will get the interest of this Court.

MR PAPAS: Your Honours, if there had been a further direction sought and there had been a conviction, I would still be seeking or still be arguing the miscarriage point because the fundamental problem associated with these sorts of comments in criminal trials

I suppose it is dangerous to go back to the point of general importance, but in Victoria it would appear because the Crown, themselves, in my learned friend's written submission, he seeks to agitate at 3.1 of his own submissions that it is okay for the Crown to point to something about a person to suggest that they would not have a reason to make a false allegation, which on our understanding of the principles in Palmer as the majority was content to lay the law down.

KIRBY J: I know it is of little comfort to your client, but this Court can make it clear that its refusal of special leave was not on the basis of condoning the practice of Crown counsel addressing the jury contrary to the principle, as I see it, in Palmer, but you still have to get this case up.

MR PAPAS: Yes. As a vehicle to point to a miscarriage the best I can do is note the following, the obvious salient features, but to do it in summary form. The repeated nature of the propositions, and in their Honours' judgment they only identify two, but in our written submissions your Honours will see that there are five separate passages.

KIRBY J: Yes, we have seen them. Both sides written submissions are very helpful in this case, and we understand the point.

MR PAPAS: The repeated nature of the transgression in this case. The fact that in this case there was no other evidence in the sense as it always is in sexual cases - not always, of course - but generally in sexual case. In this case, the defence being, if your Honours would permit me to use the shorthand, almost like arguing a breach of a contractual arrangement, that is, no dispute that there might have been a sexual action, but that this was a prostitute applying her trade and complaining rather than some other set of circumstances. So it was the complainant's word.

KIRBY J: Yes, but nobody is immune from the protection of the Crimes Act.

MR PAPAS: I hesitated in putting it because, of course - - -

KIRBY J: No, no, it is a part of the factual substratum of the case, and we have read all that.

MR PAPAS: So it is the nature of the case, the repeated nature of the propositions of the learned prosecutor. The fact that in this case, quite uniquely these sorts of cases, it is the word of one person, and, of course, juries are well suited to manage that. That is our law; we understand that. But combining those factors and going back to my proposition of the dynamics of the case, to have at the very end of the case the Crown case completed in those terms, when if the accused had given evidence, there could not have been cross-examination directed to that, makes it that sort of unique case where we would submit there has been a miscarriage.

But as your Honour so clearly put it, the written submission go to all issues. I really was going to perhaps assist your Honours in highlighting the cases and juxtaposing - - -

KIRBY J: No, I do not think you have to assist Justice Callinan and me on that. I think we understand.

MR PAPAS: May it please the Court, there is no more I can do.

KIRBY J: Mr McCardle, if we were of the view that I have indicated, that is to say that the principle, which might be suggested on one reading of Justice Callaway's opinion that Palmer does not extend to the closing address of Crown counsel should not be accepted, but this is not a case where there is such a miscarriage as to require the matter to come to this Court, if we were inclined to say that, is there anything you would want to say beyond what you have said in your written submissions, which we have considered, to dissuade us from saying that?

MR McARDLE: Obviously, your Honours, we would not wish to say anything to dissuade you from the course that you have indicated that you might take except this, in relation to the practice in Victoria. His Honours, we would submit, did not say, or should be understood as saying, there is a difference in relation to what is said in addresses and what is said in cross-examination. That is clear if for no other reason than at least two of the cases in footnote 16 on the page you have in mind page 45 in the application book, refer to cases which were decided by the Court of Appeal in Victoria concerning remarks made in the course of addresses with varying success on the part of the appellants. So it is not, it is submitted, an issue as to whether or not there is, for example - - -

KIRBY J: But the matter that would concern me would be sanctioning a view that the Court of Appeal decision in this case says what this Court, the High Court, said in Palmer only applies to cross-examination of the accused and does not apply, in terms of principle, to the closing address of the Crown. Speaking for myself, I would not restrict Palmer in that way.

MR McARDLE: No, and I do not - - -

KIRBY J: You do not say that Justice Callaway's judgment is to be understood as saying that?

MR McARDLE: No.

KIRBY J: Therefore, if we make it clear that that, in our view, is not what Palmer says, then that is consistent with what Justice Callaway has said and does not run counter to what his Honour has said?

MR McARDLE: That is what we would submit he says and we would also submit is the situation in Victoria and supported by at least two of the cases referred to in the footnotes to his Honour's remarks.

KIRBY J: Yes, very well, thank you very much.

MR McARDLE: Your Honours, are there any other matters you wish to raise with me?

KIRBY J: No, I do not think so.

MR McARDLE: If the Court pleases.

KIRBY J: It is ordinarily impermissible for a prosecutor to cross-examine an accused as to the suggested motives of a complainant to lie in making his/her accusations: see Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1. In our view, the same principle applies to the prosecutor's address to the jury. Ordinarily, the prosecutor should not ask the jury to speculate upon such motives. Doing so will give rise to irrelevant issues and a possible application for a discharge of the jury, as occurred in this case.

However, in this matter the issue of the complainant's motives had been opened by the accused's cross-examination of the complainant. The trial judge gave a suitably strong direction to the jury as to the irrelevance of the complainant's motives. The Court of Appeal applied the correct test by asking whether the error of the prosecutor's address created a "high degree of need" to discharge the jury at the very end of the trial.

In these circumstances, we are not convinced that a miscarriage of justice has occurred or that other sufficient grounds have been established to warrant the grant of special leave. Accordingly, special leave is refused.

AT 2.13 PM THE MATTER WAS CONCLUDED