Glennon v The Queen

In his charge to the jury, which was transcribed and provided to the jury to take into the jury room, the trial judge made reference to the applicant's exercise of his right to silence in interviews with the police relating to Behnk and Palmieri. His Honour stated that "if you [the jury] were to use the exercise by him of that right as adverse to him then again the right would be worthless and you may not use it in that way".

Having said that, however, I must also remind you that the accused has claimed before you in respect of the complaint made by Behnk and Palmieri that there was a simple and complete answer to the allegation made. Not only did he, before you, specifically deny it but he also called evidence in the case of Palmieri to state that at all material times Mrs. Dickason was sleeping in the room and that in the case of Behnk there were no huts.

In testing the veracity of that defence brought before you in this court you are entitled to have regard to the fact that it was not revealed to the police and you are entitled to ask yourselves, if this explanation is true, surely the sensible thing was to tell the police about it as soon as possible. Such a test of the veracity of the story does not depend on drawing any inferences from the exercise by the accused of his right to decline to answer questions but from producing here a story which if true he could have produced to the police but didn't. Again, however, you will consider his explanation for that failure which was that he had come to distrust the police profoundly, in particular [Detective Sergeant] Coath.

There was no suggestion at any stage by the trial judge that the applicant had exercised his right to silence in relation to any of the counts involving the other young people who made allegations against the applicant of sexual misconduct.

The jury convicted the applicant of the offences alleged by Behnk (count 11) and Palmieri (count 14). They also convicted the applicant of offences involving Valotta (counts 12 and 13) and Rodney Hood (count 15). However, in relation to allegations made by two other young people, Renato Trentin (count 1) and Paul Henry (counts 2-10), and in relation to counts 16 and 17 involving Hood, the jury found the applicant not guilty.

The applicant's appeal to the Court of Criminal Appeal against his convictions included the ground that the Behnk and Palmieri convictions should be quashed on the basis, inter alia, that the trial judge had erred in his directions relating to the right to silence. Initially, the Court of Criminal Appeal upheld the applicant's appeal on all counts without considering this ground of appeal. However, that decision was overturned by this Court [2] and the matter was remitted to the Court of Criminal Appeal for consideration of the other grounds of appeal, including the ground just mentioned.

The Court of Criminal Appeal held that the trial judge's direction in relation to the charges involving Behnk and Palmieri was erroneous in law, following this Court's decision in Petty . The Court then went on to consider whether it should apply the proviso in s. 568(1) of the Crimes Act ("the proviso"). Section 568(1) provides that:

The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:

Provided that the Full Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

In relation to the Palmieri incident, the Court of Criminal Appeal examined the prosecution's attack on the applicant's credibility, which was based on the contention that the applicant had changed his defence, and concluded that it was appropriate to apply the proviso because [3] :

[i]t is not reasonable to consider that the jury were persuaded in favour of the prosecution case by the impermissible consideration mentioned by the learned [trial] judge, yet not persuaded by the very much stronger (and quite different) contention of the Crown. 1. Reg. v. Glennon , [1993] 1 V.R. 97, at p. 125.

The applicant contended that the Court of Criminal Appeal was in error in applying the proviso in the circumstances of this case. First, the applicant argued that the nature of the trial judge's error was so fundamental as to depart from the essential requirements of a fair trial. In such circumstances, according to the applicant, there is no room for application of the proviso because there has been no proper trial of the case and so a miscarriage of justice has occurred. In this respect, the applicant relied on the judgment of Brennan, Dawson and Toohey JJ. in Wilde v. The Queen [4] . In the alternative, the applicant argued that the trial judge's error was such that it cannot be said that, had the misdirection not occurred, the jury must inevitably have reached the same verdict. Here the applicant relied on Driscoll v. The Queen [5] , Maric v. The Queen [6] and Mraz v. The Queen [7] . The applicant also contended that, as an application of the second approach to the proviso, "the proviso will not be applied where the error relates to the means by which, and the manner in which, the credibility of the accused is to be assessed by the jury".

1. (1988) 164 C.L.R. 365, at pp. 372-373. See also Quartermaine v. The Queen (1980), 143 C.L.R. 595, at pp. 600-601, per Gibbs J. (with whom Stephen and Murphy JJ. agreed). 2. (1977) 137 C.L.R. 517. 3. (1978) 52 A.L.J.R. 631; 20 A.L.R. 513. 4. (1955) 93 C.L.R. 493.

The two approaches to the proviso outlined above have been accepted by this Court in the cases relied upon by the applicant and are not challenged in this case. The question is whether, in the circumstances of the present case, it was erroneous to apply the proviso.

According to the approach of the majority in Wilde [8] , the proviso cannot be applied "where proceedings have so far miscarried as hardly to be a trial at all". But that is a particular situation arising only "where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings". In such a case the accused "has not had a proper trial and there has been a substantial miscarriage of justice" [8] . But the majority stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances [8] and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error [9] .

1. (1988) 164 C.L.R., at p. 373. 2. (1988) 164 C.L.R., at p. 373. 3. (1988) 164 C.L.R., at p. 373. 4. ibid., at p. 374.

In the circumstances of this case, it cannot be said that the trial judge's misdirection on the applicant's right to silence was "so fundamental" that the trial was "hardly a trial at all". Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso.

That brings us to a consideration of the applicant's alternative argument, namely, that it cannot be said that, in the absence of the misdirection, the jury would inevitably have convicted the applicant.

In order to apply the proviso where there has been a misdirection by the trial judge that is not fundamental in the sense discussed above, the Court of Criminal Appeal must be satisfied that, in the absence of the misdirection, the jury would inevitably have reached the same verdict [10] . This is so even if the case against the accused is otherwise a strong one [11] .

1. Domican v. The Queen (1992), 173 C.L.R. 555, at pp. 565-566; Wilde (1988), 164 C.L.R., at pp. 371-372, per Brennan, Dawson and Toohey JJ.; Quartermaine (1980), 143 C.L.R., at p. 600, per Gibbs J; Driscoll (1977), 137 C.L.R., at pp. 542-543, per Gibbs J. (with whom Mason and Jacobs JJ. agreed). 2. Domican (1992), 173 C.L.R., at p. 566.

In the present case, in relation to the allegations by Palmieri against the applicant, the applicant's defence was a denial of the allegations coupled with the evidence of his cousin, Dickason, to the effect that she was present in the room at the time the offence was said to have occurred. Against this was the evidence of Palmieri that the assaults had occurred. Unlike the position in relation to the Behnk allegations, there was no independent evidence tending to cast doubt on the applicant's defence. On this count, it was a contest, in essence, between the applicant's evidence (and Dickason's) and the evidence of Palmieri. In those circumstances, the applicant's credibility was of central importance to his defence, and the trial judge's misdirection certainly went to the issue of the accused's credibility and veracity. Given this, it is, in our view, not possible to say that, in the absence of the trial judge's erroneous direction on the applicant's silence, the jury would inevitably have reached the same conclusion, namely, a verdict of guilty. It is significant that the jury acquitted the applicant on counts involving two of the young people. This fact demonstrates that, in relation to some charges, the jury accepted the applicant's defence at least to the extent of finding a reasonable doubt as to his guilt. In those circumstances, it is possible that, had the trial judge not misdirected them as to the applicant's veracity, the jury might have accepted the applicant's testimony in relation to the Palmieri incident and acquitted him on that count. Accordingly, the applicant "lost a chance which was fairly open to him of being acquitted" [12] . This means that there was a substantial miscarriage of justice so as to preclude the application of the proviso. Thus, in applying the proviso in these circumstances, the Court of Criminal Appeal erred, and its decision should be set aside and the applicant's conviction in relation to the Palmieri allegations should be quashed.

1. Mraz (1955), 93 C.L.R., at p. 514, per Fullagar J.; Wilde (1988), 164 C.L.R., at p. 371.

In reaching this conclusion, we should not be taken as accepting the applicant's submissions that the proviso will never be applied where the misdirection goes to the accused's credibility. The assessment of whether the proviso should be applied depends on the circumstances of each case, and it would not be appropriate to lay down such an absolute rule as that contended for by the applicant.

There remains for consideration the question whether the trial judge's misdirection was such as to have infected the jury's verdicts on the other counts on which the applicant was convicted. The applicant argued that the misdirection did infect all counts: first, because the misdirection was provided to the jury in the transcript of the trial judge's charge and remained with the jury during their deliberations on all counts; secondly, because the error was a "positive error of direction", rather than a misdirection by omission; and, thirdly, because the central issue in the case, on all counts, was the accused's veracity and this was affected by the misdirection. The applicant also contended that, before the Court of Criminal Appeal, in written submissions provided after conclusion of oral argument, all counts were addressed, thus consideration of this issue by this Court is not inappropriate. This is not immediately apparent from the judgment of the Court of Criminal Appeal. However, for present purposes, we shall assume that the question now sought to be argued was raised below.

Although the accused's veracity was important in his defence on each count and although the trial judge commented adversely on the applicant's veracity by his misdirection, we are not persuaded that the misdirection infected the jury's deliberations on each of the other counts on which a guilty verdict was returned. First, the judge's impermissible comments clearly related only to two counts: those involving Palmieri and Behnk. In the case of Behnk, the effect of those comments was not such as to cause a substantial miscarriage of justice and the applicant's application for special leave on that count was refused by this Court. Secondly, the trial judge expressly directed the jury that they were not to allow their findings on one count to affect their findings on any other counts. In this respect, the trial judge stated:

What in particular I caution you against as an exercise you may not follow is to use a finding of guilty in respect of one victim to support a finding of guilty in respect of another. Finally, and of considerable weight, is a point we mentioned earlier: the jury did not convict the applicant on all counts, demonstrating that the trial judge's erroneous direction did not infect the jury's consideration of the applicant's veracity in relation to all counts.

In the result, we would grant the applicant special leave to appeal against his conviction on count 14 and allow the appeal on that count.

The facts and the issues are set out in the joint judgment of Mason C.J., Brennan and Toohey JJ. As appears from their Honours' judgment, the applicant was charged with a number of sexual offences. At trial, the jury were directed in relation to two of the charges in a way which derogated from his right to silence. In particular, they were directed that "[i]n testing the veracity of [the] defence [to those charges] you are entitled to have regard to the fact that it was not revealed to the police and you are entitled to ask yourselves, if this explanation is true, surely the sensible thing was to tell the police about it as soon as possible."

Application was made for special leave to appeal with respect to all counts on which the applicant was convicted. The application was refused at the conclusion of the hearing, except with respect to one count alleging that the applicant indecently assaulted Franco Palmieri. So far as that count is concerned, the question that now arises is whether the Court of Criminal Appeal of Victoria was correct in holding that, notwithstanding the erroneous direction set out above, the applicant's appeal to that court should be dismissed pursuant to the proviso in s. 568(1) of the Crimes Act 1958 (Vict.).

The proviso, like the criminal appeal provisos in other States, allows that a criminal appeal may be dismissed, notwithstanding error in the trial, if the court "considers that no substantial miscarriage of justice has actually occurred". It is now accepted, following the decision in Wilde v. The Queen [13] , that there are some cases in which there is simply no scope for the proviso to operate. In that case, it was said by Brennan, Dawson and Toohey JJ. that the common form proviso can have no application where "proceedings have so far miscarried as hardly to be a trial at all" or where "an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings" [14] . A somewhat different approach was taken by Deane J. who expressed the view that the proviso can have no application where "error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law" [15] . In the view of Gaudron J. [16] , there had been a substantial miscarriage of justice in the sense explained by Fullagar J. in Mraz v. The Queen, namely, the accused had "lost a chance which was fairly open to him of being acquitted" [17] and, in the circumstances, it was unnecessary to consider the scope of the proviso's operation.

1. (1988) 164 C.L.R. 365. 2. ibid., at p. 373. 3. ibid., at p. 375. 4. ibid., at p. 381. 5. (1955) 93 C.L.R. 493, at p. 514.

In our view, it follows from ordinary principles of construction that, as Deane J. indicated in Wilde, the common form proviso can have no application in a case where, overall, there has not been a fair trial according to law. The principle that an accused person is entitled to a fair trial according to law is fundamental to the criminal law and is, arguably, the most important of all legal principles. It is simply not possible to discern any intention in the proviso, let alone a clear or necessary intention [18] , that a court of criminal appeal should allow a conviction to stand notwithstanding that, overall, the accused was denied a fair trial according to law.

1. As to the intention necessary before a statute is construed as derogating from important common law rights, see, e.g., Potter v. Minahan (1908), 7 C.L.R. 277, at p. 304; Sorby v. The Commonwealth (1983), 152 C.L.R. 281, at pp. 289-290, 309, 316; Baker v Campbell (1983), 153 C.L.R. 52, at pp. 96-97, 104, 116, 123; Balog v. Independent Commission Against Corruption (1990), 169 C.L.R. 625, at pp. 635-636; Bropho v. Western Australia (1990), 171 C.L.R. 1, at p. 18; Corporate Affairs Commission (NSW) v. Yuill (1991), 172 C.L.R. 319, at pp. 322, 331, 338, 348.

If proceedings have "so far miscarried as hardly to be a trial at all" or have involved "such a departure from the essential requirements of the law that it goes to the root of the proceedings", there has not been, overall, a fair trial according to law. But outside the concept of a fair trial according to law, neither the description of proceedings as "hardly a trial at all" nor that of proceedings as involving "a departure from the essential requirements of the law" has any legal significance for the purposes of the proviso. And neither description provides a reliable guide for determining in what cases it does or does not apply, each case being one that "must be determined upon its own circumstances" [19] .

1. Wilde (1988), 164 C.L.R., at p. 373, per Brennan, Dawson and Toohey JJ.

A misdirection as to the use or evaluation by a jury of properly admitted evidence does not ordinarily result in there not being, overall, a fair trial according to law in the sense discussed by Deane J. in Wilde. Rather, a misdirection of that kind is ordinarily one that must be evaluated in the light of the issues in the trial and the way in which the trial was conducted before it can be ascertained whether it might have affected the jury's deliberations.

The traditional test of whether there has been a substantial miscarriage of justice for the purposes of the proviso is that laid down by Fullagar J. in Mraz v. The Queen and to which we have already referred, namely, whether the accused "lost a chance of acquittal which was fairly open". That test is one which reflects the issue raised when it is argued that a conviction should be set aside. When it is argued that the conviction should be upheld, the issue is usually expressed as being whether the jury would inevitably have reached the same verdict even if the error in question had not occurred [20] .

1. See, e.g., Driscoll v. The Queen (1977), 137 C.L.R. 517, at pp. 524-525, 543; Butera v. Director of Public Prosecutions (Vict.) (1987), 164 C.L.R. 180, at p. 213; Wilde (1988), 164 C.L.R., at pp. 372-374; Domican v. The Queen (1992), 173 C.L.R. 555, at pp. 565-566.

There is nothing to give any significance to the misdirection involved in this case over and above that which ordinarily attaches to a misdirection as to the use or evaluation of properly admitted evidence. Accordingly, there is no basis for an argument that, overall, there was not a fair trial according to law and, thus, no scope for the operation of the proviso. The only question is whether, so far as the Palmieri count is concerned, the misdirection resulted in a substantial miscarriage of justice in the sense explained in Mraz.

The effect of the misdirection in this case was that the jury were invited to reject the evidence of Mrs. Dickason and the sworn denial of the applicant that he indecently assaulted Franco Palmieri on an impermissible basis, namely, that the details of the applicant's defence had not been revealed to investigating police. The only evidence of the assault was the uncorroborated evidence of the complainant and, thus, in practical terms, the central issue in the case depended entirely on whether the applicant or the complainant was to be believed. In these circumstances, a direction which wrongly detracted from the applicant's credibility and that of his witness must be viewed as having deprived him of a chance of acquittal that was fairly open. Or to put the matter another way, it is impossible to say that the jury would inevitably have convicted if there had been no misdirection affecting credibility.

As earlier indicated, the effect of a misdirection as to the use or evaluation of properly admitted evidence will ordinarily depend on the issues in the trial and the way in which it was conducted. So it is with a misdirection which wrongly impugns the credibility of the accused. A misdirection of that kind may be of little significance because, for example, it is confined to some discrete matter that was not really in issue in the trial, or, if it was, it proves, on analysis, to have been of marginal relevance and incapable of affecting the jury's verdict. However, where, as here, a finding as to an element of an offence necessarily depends on credibility, a direction which wrongly impugns the credibility of an accused or of his witnesses must be seen as involving a substantial miscarriage of justice.

Special leave to appeal should be granted with respect to the applicant's conviction on count 14. The appeal should be allowed and the conviction set aside.